Barbara McQuade, former U.S. attorney, discusses findings by the January 6th committee, revealed in a court filing in a federal case about obtaining documents from Trumpworld lawyer John Eastman, in which it is revealed that the committee has concluded that Donald Trump obstructed an official proceeding and "engaged in a criminal conspiracy to defraud the U.S."
[Barbara McQuade] Donald Trump absolutely knew that there was no fraud here. In fact, one judge said, "There was not a scintilla of evidence that there IS fraud." There's an instruction that juries get about willful blindness. You can't turn a blind eye to something when it's highly probable that it's true. If someone tells you that the world is round, you can't say the world is flat in the face of repeated evidence that it is round. If scientists tell you, and they show you photos, and you continue to persist that the world is flat, at some point, a jury will believe that you are lying.
Kinzinger: Trump was the 'worst president America has ever had' by CNN Feb 7, 2022
Speaking out after being censured by the Republican National Committee, Rep. Kinzinger (R-IL) shares with New Day what he will tell his son about former president Donald Trump.
Peter Bernegger and the Wisconsin Election Review by Ali Velshi MSNBC February 11, 2022
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United States Court of Appeals, Fifth Circuit. UNITED STATES OF AMERICA, Plaintiff–Appellee, v. PETER BERNEGGER, Defendant–Appellant.
No. 09–60932 Decided: October 20, 2011 Before WIENER, CLEMENT, and ELROD, Circuit Judges. Defendant, Peter Bernegger, appeals his conviction for mail and bank fraud. He also appeals his sentence of seventy months in prison and restitution of approximately $2 million. We AFFIRM as modified.
I.
Peter Bernegger and Stephen Finch were charged in a six-count indictment with various counts of mail fraud, wire fraud, bank fraud, and conspiracy for inducing investors to invest money in their two start-up companies, We–Gel and Citrus Products International (CPI). We–Gel purported to make gelatin out of catfish waste, and CPI sought to make limonin out of lemon seeds.
Attempting to obtain capital for their new businesses, Bernegger and Finch held several meetings for potential investors, explaining their knowledge of the processes used to make gelatin and limonin out of waste products. One witness testified that Bernegger and Finch claimed there was nothing they did not know about these processes and that the gelatin was perfected and ready to be sold. Two witnesses testified that Finch said he and Bernegger had a contract with Nutri–West that was worth $3.2 million. Following these meetings, several individuals invested in both We–Gel and CPI.
Bernegger and Finch were never able to manufacture a sellable product, however, often pouring the results of their attempts in a ditch behind the plant. In fact, they were only able to make viable batches of the product a couple of times. As a result, We–Gel had no customers, and never made any sales. Nonetheless, Bernegger sent e-mails and letters to investors telling them how well things were going. Among other things, he told the investors that “We–Gel is producing product, shipping and invoicing customers,” “we have contracted orders from 2 large customers totaling 3,000 metric tons per year,” and We–Gel had “completely sold out of gelatin at a good price.” He further told investors that the United States Navy had expressed interest in the process being used at We–Gel. David Cooper, an investor who also worked as a chemist with Finch and Bernegger, testified that he asked Bernegger why he did not tell the investors the truth in these letters, to which Bernegger replied, “They can't handle the truth.”
Later, Bernegger mailed a letter to We–Gel investors asking for additional funds “to finance [We–Gel's] accounts receivable” and asking each investor to contribute at least $25,000. In that letter, he noted that in order to “sweeten the pot,” “a letter of intent has been signed with a Texas fish processing company named GAF.” In a letter sent three days later, he said that GAF “is paying” We–Gel $1.2 million, which was purportedly “on top of the 50% of pre-tax profits from the second plant and is expected to be paid in about 4 months from now.” Bernegger testified that he believed that We–Gel did have a letter of intent with GAF, pointing to an agreement We–Gel had with L & S Consulting, a company that hoped to broker a deal between We–Gel and GAF. That letter stated that “L & S is negotiating a deal with GAF such that GAF and We–Gel will form a 50–50 partnership for fish waste processing.” The document was signed by Bernegger and Larry Mobley, a partner at L & S. Bernegger claimed that he believed Mobley was signing on behalf of GAF.
The jury heard testimony from GAF's general manager, GAF's executive vice president, and Mobley, each of whom testified that GAF never signed a letter of intent with We–Gel. The only document signed by GAF was a confidentiality agreement in anticipation of GAF's visit to We–Gel's plant. Although GAF employees did visit the We–Gel plant, they did not think the process was sufficiently developed to warrant doing business with We–Gel.
As a result of the letters Bernegger mailed, We–Gel obtained additional funding from some of its investors. One investor gave another $25,000 just days after receiving the second letter. Other investors did so shortly thereafter. At the end of February 2005, Donnie Kisner, who had invested $100,000 in CPI, called his relative, Leo Bieneck, to tell him what he had learned about We–Gel during the investor meetings. As a result of that conversation, Bieneck wrote a check to We–Gel for $25,000. At the time of trial, none of the investors had received any return on his investment.
In addition to funding from his investors, Bernegger obtained grants of $250,000 each from both Clay County, Mississippi and the Mississippi Land, Water and Timber Board. Bernegger signed both a grant agreement and a security agreement with the state. As collateral for the security agreement, the state received the first and only lien on any equipment purchased with the money for five years. We–Gel was expected to meet certain other requirements, such as employing at least fifty-five employees after two years, turning in timely reports, and not selling the company. If We–Gel did not meet any of those obligations, the state could foreclose on the equipment.
A few months after signing the security agreement with the state, Bernegger sought a loan from BancorpSouth, hoping to pledge the same equipment as collateral. He sent the loan officer a letter with a list of equipment, valuing it at $1 million and stating, “We–Gel owns this equipment and it is paid for in full.” The letter did not mention the state's security interest. We–Gel's office manager testified that, when Bernegger asked her to put together information about the equipment to give to the bank, she told him that the equipment was owned by the state. Asked what his response was, she said, “He kind of shrugged me off and told me not to worry about it. That, no, that was our equipment.” Later, Bernegger took the loan officer on a tour of We–Gel and reiterated that it owned all of the equipment free of any liens. As a result, Bancorp agreed to issue a loan to Bernegger secured by the equipment.
As a condition of closing the loan with Bancorp, Bernegger gave the bank a lien on his home in Wisconsin, which was already the subject of three liens. Before closing the loan with Bancorp, however, he borrowed $100,000 from another bank, pledging his home as collateral. Nonetheless, he signed an affidavit at the closing with Bancorp purporting to set forth all of the liens on the house, but omitting the new lien of $100,000. When Bancorp received the title opinion revealing the fourth lien, it refused to fund the remainder of the loan. Bancorp estimated its total loss from We–Gel at $125,000.
The indictment included six counts.1 The jury acquitted Finch of the two counts against him and acquitted Bernegger of two of the five counts against him, but convicted Bernegger of mail fraud and bank fraud. Bernegger was sentenced to seventy months in prison and ordered to pay restitution of $2,100,000.
II.
Bernegger makes several arguments on appeal, challenging both his conviction and his sentence.
A.
Bernegger first contends that the district court erred in refusing to sever
the bank fraud count from the mail and wire fraud counts. Under Federal Rule of Criminal Procedure 12(b), “objections based on defects in the indictment, as well as [r]equests for severance of charges or defendants ․ must be raised prior to trial.” United States v. Mann, 161 F.3d 840, 861 (5th Cir.1998) (internal quotation marks omitted). Bernegger never moved to sever Count 6, however. Instead, he points to a Motion to Sever filed under Federal Rule of Criminal Procedure 8(b), requesting that the district court “sever[ ] the case against him from that of the case of the Co–Defendant, Stephen Finch.” Bernegger renewed that motion several times during the trial, but at all times he referred only to severing his case from that of his co-defendant.
Bernegger nonetheless asserts that his motion below preserved the issue because Rule 8(b) controls all severance motions in cases in which multiple defendants are tried, regardless of whether the movant is seeking to sever offenses or defendants. Bernegger, however, never mentioned severing Count 6 in his motion to the trial court. A defendant waives his offense-severance argument when he argues below only that severance of defendants was required yet maintains on appeal that severance of offenses is necessary. See Mann, 161 F.3d at 861 n.58 (distinguishing motions to sever offenses from motions to sever defendants for preservation purposes). Nor is this result changed by United States v. Holloway, 1 F.3d 307 (5th Cir.1993), cited by Bernegger at oral argument. There, the defendant moved to sever the charge of being a felon in possession of a weapon from his robbery offenses, citing Rule 14 but not Rule 8(a). Id. at 309–10. We held that the defendant need not cite the particular rule when his argument is made clear to the district court. Id. at 310 n.2. Critically, here, Bernegger neither cited the proper rule nor made his argument that the charges should be severed to the district court. As a result, he did not preserve the issue, regardless of which rule controls.
Alternatively, Bernegger argues that this court should review the failure to sever for plain error. When an appellant does not show cause for failing to move for severance prior to trial, we need not address the merits of the severance argument at all, but we retain discretion to review for plain error. Mann, 161 F.3d at 862; United States v. Tolliver, 61 F.3d 1189, 1198–99 & n.6 (5th Cir.1995), vacated and remanded on other grounds, 516 U.S. 1105 (1996). Even if we review for plain error, Bernegger is not entitled to relief. “The indictment ․ may charge a defendant in separate counts with 2 or more offenses if the offenses charged ․ are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). The district court did not clearly err in finding that these offenses were of a similar character and constitute part of a common scheme—“the making of fraudulent misrepresentations for the purpose of funding his business venture.”
Nor did Bernegger establish that any alleged error affected his substantial rights. He briefly argues that he was prejudiced because “the mere existence of the bank fraud invariably led the jury to assume the worst about Mr. Bernegger,” which he says “explains Mr. Bernegger's convictions when Mr. Finch, who admitted lying to Mr. Bernegger and the investors, was acquitted of every count.” He fails to note, however, that the court instructed the jury:
A separate crime is charged against one or more of the defendants in each count of the indictment. Each count and the evidence pertaining to it should be considered separately. The case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate considerations to the evidence as to each defendant.
We have held that instructions almost identical to those given here are sufficient to cure any prejudice from the joinder of defendants or offenses. See Mann, 161 F.3d at 862. Indeed, the jury followed those instructions: Bernegger was acquitted on two counts, as was Finch. As this court has previously said, “the acquittal of all the defendants on one or more counts ‘supports the inference that the jury considered separately the evidence as to each defendant and each count.’ ” Id. (footnote omitted) (quoting United States v. Faulkner, 17 F.3d 745, 759 (5th Cir.1994)). In sum, the district court did not commit plain error by not severing Count 6.
B.
Bernegger next argues that the district court violated the Confrontation Clause of the Sixth Amendment when it denied him the opportunity to cross-examine Donnie Kisner, an investor in CPI, about an alleged discrepancy in his testimony. This claim is reviewed de novo, subject to a harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If no Sixth Amendment violation occurred, we review the limitations on cross-examination for an abuse of discretion. Id. at 558–59. We will not find an abuse of discretion “absent a showing that the limitations were clearly prejudicial.” United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (internal quotation marks omitted).
While the Sixth Amendment guarantees the right of a defendant to cross-examine witnesses against him, that right is not unlimited. Jimenez, 464 F.3d at 558. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination [regarding a witness's motivation to testify] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “What is required is that defense counsel be ‘permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” Diaz, 637 F.3d at 597 (quoting United States v. Hitt, 473 F.3d 146, 156 (5th Cir.2006) (citation omitted)). To determine if a Sixth Amendment violation has occurred, we inquire into “whether the jury had sufficient information to appraise the bias and motives of the witness.” United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993).
During cross-examination, Kisner revealed that he was involved in an ongoing project involving processing waste with David Cooper, an investor who had also worked as a chemist with Finch and Bernegger. Kisner testified that he had signed a confidentiality agreement and could not discuss it further, but Bernegger argued that he should be able to cross-examine Kisner on the details of the project:
I think now that we know that this is a byproduct of food and Mr. Cooper is involved and Mr. Cooper was involved in CPI and We–Gel, I have good reason to believe that these gentlemen may have commandeered—that may be a strong word—or absconded—that's a strong word, too—with a project for which Mr. Bernegger may have had—may use and now may be processing that, the same set of facts that are before this Court and for which my client is being criminally prosecuted. I don't know that because I haven't heard what Mr. Kisner is going to say. But if that's the case, that is terribly relevant, Your Honor. In fact, that is not only relevant, it is material.
The district court excused the jury to take testimony under seal. During Bernegger's questioning outside the presence of the jury, Kisner testified that he was involved in a new project to process waste with Putnam Ethanol. He further testified that his wife had signed the confidentiality agreement, contrary to his earlier testimony that he had done so. He testified, however, that he was bound by it. The district court determined that the new project and any alleged trade secret violation were not relevant to the fraud issues presented to the jury. Accordingly, the district court did not allow Bernegger to cross-examine Kisner on that particular issue in front of the jury.
Bernegger first argues that he should have been able to cross-examine Kisner about the fact that his wife actually signed the confidentiality agreement, contrary to Kisner's prior testimony. However, the record does not reflect that Bernegger's attorney ever sought to elicit that testimony before the jury. The district court did not prevent him from cross-examining Kisner about the discrepancy in his testimony. Alternatively, Bernegger argues that the district court's limitation on his cross-examination of Kisner was improper because Bernegger might have shown that Kisner stole a trade secret from him and used it in his new project, meaning that Kisner had an interest in seeing Bernegger convicted. Bernegger has not shown, however, that such testimony would have been relevant to whether he fraudulently obtained funding for CPI and We–Gel, or would have been more than marginally relevant to Kisner's credibility. Nor has he presented anything more than mere speculation that Kisner did in fact use one of Bernegger's processes improperly. Therefore, the district court gave Bernegger sufficient latitude during his cross-examination of Kisner, and there was no Sixth Amendment violation.
Because no Sixth Amendment violation occurred, we next review whether the district court's restrictions on cross-examination were so prejudicial as to result in an abuse of discretion. Jimenez, 464 F.3d at 558–59. Prejudice is shown only if “a reasonable jury might have had a significantly different impression of the witness's credibility if defense counsel had been allowed to pursue the questioning.” United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004). For the reasons discussed above, Bernegger has not shown that the district court's limitations on cross-examination were prejudicial. The district court did not abuse its discretion.
C.
Next, Bernegger contends that the district court erred by not granting a mistrial based on the format of the superseding indictment. Because he never asked the district court for a mistrial based on the indictment, we review for plain error. See United States v. Potts, 644 F.3d 233, 236 (5th Cir.2011). Paragraphs 1 through 8 of the indictment, which were listed under the title “The Scheme” in Count 1, generally described the fraudulent scheme allegedly devised by Finch and Bernegger. Those eight paragraphs were then incorporated by reference in Counts 2 through 5. Following the general description of the scheme, the indictment contained another section, entitled “Execution of the Scheme,” that laid out the specifics of Count 1—namely, that Finch had made misrepresentations to Larry Mobley, causing him to wire approximately $200,000 to We–Gel. Accordingly, while both Bernegger and Finch were identified in the first part of Count 1 describing the scheme, only Finch was actually charged with executing the scheme.
In Bernegger's view, the form of the indictment was confusing to the jury and justified a sua sponte mistrial. As the district court explained while discussing Count 1 at the charge conference, the jury charge adequately made clear that Bernegger was not charged in Count 1. Bernegger's counsel agreed:
THE COURT: I think the instructions, as they are, are adequate. Mr. Daniels, you can't find him guilty if there's not a blank to fill in.
MR. DANIELS: Right.
Bernegger's attorney then requested an additional curative instruction to clarify the point further, which the district court granted, instructing the jury:
Now, ladies and gentlemen, I cannot emphasize enough to you that unless there is a blank here provided for that defendant, you cannot find that defendant guilty of that count, and the example that I'm giving you primarily deals with Count 1. Count 1 mentions—goes in great detail, you will have this superseding indictment back there, and Mr. Bernegger is mentioned, his name is mentioned in Count 1. But there is no provision for you to find Mr. Bernegger guilty of Count 1 of that indictment.
Bernegger received everything he requested from the district court to clarify the Count 1 issue.2 The district court did not plainly err by not declaring a mistrial sua sponte.
D.
In addition, Bernegger argues that insufficient evidence supports the jury's verdict on Count 3 of the indictment: that he caused Leo Bieneck to send $25,000 by mail. In addressing such an argument, this court views the evidence and the inferences drawn therefrom in the light most favorable to the verdict. United States v. Mitchell, 484 F.3d 762, 768 (5th Cir.2007). “Credibility determinations and reasonable inferences are resolved in favor of the jury's verdict.” United States v. Thompson, 647 F.3d 180, 183 (5th Cir.2011). The issue is not whether the jury correctly determined guilt, but whether it made a rational decision supported by sufficient evidence in the record. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995).
To prove mail fraud, “[t]he Government was required to prove only a scheme to defraud, the use of the mail or wire communications, and a specific intent to defraud.” United States v. McMillan, 600 F.3d 434, 450 (5th Cir.2010); see 18 U.S.C. § 1341. Contrary to Bernegger's contentions, the government is not required to prove that any misrepresentations were made directly to the victim. McMillan, 600 F.3d at 450. Bernegger argues first, that no fraudulent scheme existed, second, that there was no proof that Bieneck's check was mailed, and third, that there was no evidence that he had specific intent to defraud Bieneck or that he caused Bieneck to send the check.
First, there is sufficient evidence in the record to support a scheme to defraud. Bernegger argues generally that he intended to establish a legitimate business, that there was a large demand for gelatin, that Finch lied to him about being a doctor, and that the investors signed subscription agreements recognizing the economic risk of investing. As detailed above, the jury was presented with sufficient evidence that Bernegger made specific misrepresentations about contracts that We–Gel did not actually have, about a letter of intent signed by GAF,3 about how well production was going, and about the status of collateral he pledged for a business loan,4 all with the goal of obtaining money to fund We–Gel. The jury was free to credit this evidence and disbelieve Bernegger, and there is sufficient evidence to support the jury's finding of a scheme to defraud.
Second, sufficient evidence supports the jury's finding that Bieneck's check was mailed. “When ․ it would be unusual for the transmittal in question to be made other than by mail, circumstantial evidence of the mailing is sufficient to support a mail fraud conviction.” United States v. Sprick, 233 F.3d 845, 854 (5th Cir.2000). Bieneck lived in Oklahoma; We–Gel received his check in Mississippi. The government points to the following testimony from Bernegger as an implicit admission that the check from Bieneck was mailed to We–Gel:
Q. While we are on the subject of checks, Mr. Bieneck mailed you a check in February of '05 as well; is that correct?
A. No.
Q. That is not correct?
A. No.
Q. You did receive a check from Leo Bieneck, correct?
A. We–Gel did, yes.
Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence that Bernegger used the mail for a fraudulent scheme.
Third, there is sufficient evidence that Bernegger caused Bieneck to send the check and that he had a specific intent to defraud. The jury heard testimony from Kisner that he relayed the information he had heard from Bernegger to his relative, Bieneck. It cannot be disputed that Bernegger's intent in sending the letters and holding the investors' meeting was to procure more investors. Kisner himself invested more money after receiving the letters from Bernegger, and he told Bieneck about We–Gel shortly thereafter. Bieneck mailed his check less than a month after Bernegger mailed the second letter. Sufficient evidence supports the jury's verdict that Bernegger's misrepresentations caused Bieneck to invest money in We–Gel.
E.
Bernegger also argues that the district court erred in denying his pro se habeas corpus petition. After the verdict, but before sentencing, Bernegger filed a habeas petition under 28 U.S.C. § 2255 raising, among other things, a claim for ineffective assistance of counsel. His trial counsel then moved to withdraw based on those claims. The district court denied both the habeas petition and the motion to withdraw, holding that the petition was not ripe, and we dismissed the appeal from the denial. A defendant cannot collaterally attack his conviction until it has been affirmed on direct appeal. Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir.1988). As a general rule, therefore, this court declines to review ineffective-assistance claims on direct appeal. United States v. Bishop, 629 F.3d 462, 469 (5th Cir.2010). The district court correctly determined that Bernegger's habeas corpus petition was not ripe for review.
F.
Finally, Bernegger challenges his sentence, arguing that the district court improperly calculated the total loss caused by his fraudulent scheme as $2,196,296 and improperly ordered restitution in that amount. See U.S.S.G. § 1B1.3(a)(2). A district court's calculation of the amount of loss attributable to a defendant is reviewed for clear error. United States v. Peterson, 101 F.3d 375, 384 (5th Cir.1996). Bernegger asserts that the district court clearly erred by including in the total loss amount the loans he obtained from Clay County, Mississippi and the Mississippi Land, Water and Timber Board (the Timber Board), each for approximately $250,000. The pre-sentence report (PSR), which the district court adopted, included the amounts of these government loans in the total loss and listed Clay County and the Timber Board as victims.
Bernegger argues that, because he did not obtain the two loans criminally, the district court improperly included them in the total loss amount. It is well established that for “acts to constitute relevant conduct [for purposes of calculating the total loss attributable to the defendant], the conduct must be criminal.” United States v. Anderson, 174 F.3d 515, 526 (5th Cir.1999) (citing United States v. Powell, 124 F.3d 655, 665 (5th Cir.1997)). “Before a court may attribute losses to a defendant's fraudulent conduct, there must be some factual basis for the conclusion that those losses were the result of fraud.” See also United States v. Randall, 157 F.3d 328, 331 (5th Cir.1998) (internal quotation marks and alterations omitted).
No evidence introduced either at trial or at sentencing demonstrated that Bernegger obtained these loans in a fraudulent or otherwise criminal manner. In fact, the government never even alleged that Bernegger acted criminally in obtaining the loans. While the PSR lists Clay County and the Timber Board as victims, it fails to allege any facts to support this conclusion. Although a PSR “may be considered as evidence by the court when making sentencing determinations,” bare assertions made therein are not evidence standing alone. United States v. Ford, 558 F.3d 371, 376 (5th Cir.2009). In the absence of evidence supporting its characterization of the loans, the PSR is inadequate to support the inclusion of the loan amounts in the loss calculation. See Anderson, 174 F.3d at 528–30; see also Peterson, 101 F.3d at 385. As such, the district court clearly erred in treating the amounts Bernegger borrowed from Clay County and the Timber Board as losses attributable to “relevant conduct” within the meaning of section 1B1.3(a)(2) of the United States Sentencing Guidelines.
Subtracting the amounts of the two government loans from the loss calculation does not affect Bernegger's offense level, however, and therefore does not affect his sentence. The district court calculated the loss attributable to Bernegger's fraud as $2,196,296.08. Only $471,296.08 of the total loss amount was attributable to the government loans. Under the Sentencing Guidelines, any loss amount between $1,000,000 and $2,500,000 yields the same 16–level increase. See U.S.S.G. § 2B1.1(b)(1). Thus, subtracting the loan amounts from the loss calculation, the correct total loss amount is $1,725,000, and Bernegger's offense level remains the same.
Because the district court clearly erred in calculating the total loss amount, however, the restitution amount is incorrect and must be modified. See United States v. Glinsey, 209 F.3d 386, 395–96 (5th Cir.2000). We therefore modify the restitution amount to reflect the correct total loss amount of $1,725,000.
III.
Accordingly, the judgment of the district court is AFFIRMED as modified.
FOOTNOTES
FN1. The indictment charged that: (1) Finch caused Larry Mobley to send a wire transfer of approximately $200,000; (2) Bernegger caused Craig Trebatowski to send via mail $100,000; (3) Bernegger caused Leo Bienek to send via mail $25,000; (4) Bernegger sent via mail a letter to all investors of We–Gel, his company, seeking additional cash investments based on several misrepresentations; (5) Finch and Bernegger conspired to commit wire and mail fraud, as set forth in the counts above; and (6) Bernegger committed fraud upon BancorpSouth, whose deposits were insured by the FDIC, by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel.. FN1. The indictment charged that: (1) Finch caused Larry Mobley to send a wire transfer of approximately $200,000; (2) Bernegger caused Craig Trebatowski to send via mail $100,000; (3) Bernegger caused Leo Bienek to send via mail $25,000; (4) Bernegger sent via mail a letter to all investors of We–Gel, his company, seeking additional cash investments based on several misrepresentations; (5) Finch and Bernegger conspired to commit wire and mail fraud, as set forth in the counts above; and (6) Bernegger committed fraud upon BancorpSouth, whose deposits were insured by the FDIC, by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel.
FN2. Relatedly, Bernegger claims that the district court erred “by not redacting [his name] from Count 1 of the indictment.” This court reviews this claim for an abuse of discretion. United States v. Graves, 5 F.3d 1546, 1550 (5th Cir.1993). The Federal Rules of Criminal Procedure provide that “[t]he Court on motion of the defendant may strike surplusage from indictment or information.” Fed.R.Crim.P. 7(d). To strike surplusage, the language in the indictment must be “irrelevant, inflammatory, and prejudicial.” Graves, 5 F.3d at 1550. In response to Bernegger's request that the district court remove his name from Count 1, the district court explained that doing so would deprive the jury of the context of the fraud. Bernegger has not established that the inclusion of his name in the indictment was “irrelevant, inflammatory, and prejudicial” and has not shown that the district court abused its discretion in refusing to strike the language.. FN2. Relatedly, Bernegger claims that the district court erred “by not redacting [his name] from Count 1 of the indictment.” This court reviews this claim for an abuse of discretion. United States v. Graves, 5 F.3d 1546, 1550 (5th Cir.1993). The Federal Rules of Criminal Procedure provide that “[t]he Court on motion of the defendant may strike surplusage from indictment or information.” Fed.R.Crim.P. 7(d). To strike surplusage, the language in the indictment must be “irrelevant, inflammatory, and prejudicial.” Graves, 5 F.3d at 1550. In response to Bernegger's request that the district court remove his name from Count 1, the district court explained that doing so would deprive the jury of the context of the fraud. Bernegger has not established that the inclusion of his name in the indictment was “irrelevant, inflammatory, and prejudicial” and has not shown that the district court abused its discretion in refusing to strike the language.
FN3. Bernegger contends that the district court erred by failing to instruct the jury on the definition of “letter of intent.” The district court denied that request because it was an improper instruction and the definition was more properly suited for attorney argument. This court reviews “a challenge to jury instructions for an abuse of discretion, affording the district court substantial latitude in describing the law to the jurors.” United States v. Ortiz–Mendez, 634 F.3d 837, 839 (5th Cir.2011) (internal quotation marks omitted). Bernegger has not established that the district court abused its discretion by denying the request.. FN3. Bernegger contends that the district court erred by failing to instruct the jury on the definition of “letter of intent.” The district court denied that request because it was an improper instruction and the definition was more properly suited for attorney argument. This court reviews “a challenge to jury instructions for an abuse of discretion, affording the district court substantial latitude in describing the law to the jurors.” United States v. Ortiz–Mendez, 634 F.3d 837, 839 (5th Cir.2011) (internal quotation marks omitted). Bernegger has not established that the district court abused its discretion by denying the request.
FN4. Bernegger makes similar arguments regarding the sufficiency of the evidence to support his convictions under Counts 4 and 6, that the government failed to establish beyond a reasonable doubt that he sent letters by mail to all investors of We–Gel seeking additional cash investments and that he committed fraud upon BancorpSouth by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel. For the reasons detailed above, there is sufficient evidence to support the jury's verdict on these counts.. FN4. Bernegger makes similar arguments regarding the sufficiency of the evidence to support his convictions under Counts 4 and 6, that the government failed to establish beyond a reasonable doubt that he sent letters by mail to all investors of We–Gel seeking additional cash investments and that he committed fraud upon BancorpSouth by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel. For the reasons detailed above, there is sufficient evidence to support the jury's verdict on these counts.
PER CURIAM:
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A Wisconsin man is scanning ballots and suing a county clerk as he launches his own election review by Patrick Marley Milwaukee Journal Sentinel July 5, 2021
MADISON - Republican lawmakers aren't the only ones examining Wisconsin's presidential election.
A New London man has been making copies of ballots in some communities as he conducts his own review of an election Joe Biden narrowly won.
"Our intention is to have true and honest elections. You hear all kinds of rumors and we want to dispel some of those if they're not true," Peter Bernegger said when asked about his endeavor.
Bernegger declined to say what his plans are but said he would announce them in the coming weeks. Recounts in Dane and Milwaukee counties and more than a half dozen lawsuits upheld Biden's victory.
Bernegger's push to inspect ballots comes as Republican lawmakers ramp up their own review of the election. They have hired former state Supreme Court Justice Michael Gableman and former law enforcement officers at taxpayer expense to conduct their review as they decide whether to pass more election-related legislation.
Assembly Speaker Robin Vos of Rochester has acknowledged Biden won the election. That has won him enmity from former President Donald Trump, who has said Vos, Senate President Chris Kapenga of Delafield and Senate Majority Leader Devin LeMahieu of Oostburg haven't done enough to investigate the election.
More:Wisconsin Republicans, and a disgraced ex-Missouri governor, tour site of controversial Arizona ballot audit
Scanning and suing
Dane County Clerk Scott McDonell said last year's election was run properly but he worries efforts like Bernegger's undermine faith in it.
"One of the difficult things about conspiracy theories is they basically can't be disproved and all they do is cause doubt and distrust."
Bernegger sued Door County Clerk Jill Lau in May for copies of election documents. A judge has yet to rule.
He has made copies of ballots in at least two Dane County communities, Verona and Westport. He indicated he was collecting ballots in other counties but declined to say which ones.
Robert Anderson, the deputy clerk in Westport, said Bernegger told him he had plans to visit Brown County and hoped to eventually review 2 million of the 3.3 million ballots cast in the state.
Asked about that figure Thursday, Bernegger said he had "no knowledge of the total number" of ballots he would end up examining.
Anderson said Bernegger asked to review the more than 3,000 ballots cast in Westport. Bernegger and three others spent about four hours there last month scanning copies on equipment they brought with them, Anderson said.
Anderson had three poll workers on hand to oversee the process. He charged Bernegger $135 to cover their pay, he said.
"They were just looking for stuff. He didn't give me specifics," Anderson said.
In Verona, Bernegger and a few others spent half a day scanning ballots from one ward, according to City Administrator Adam Sayre.
Dane County has posted images of every ballot cast in November on its website. Bernegger didn't say why he wanted to make his own copies instead of using those.
In his lawsuit in Door County, Bernegger wrote that he had asked to inspect and take photos of hard drives, memory sticks, election manuals, vote tabulations and other documents.
He wrote in the lawsuit that he had looked at some material during a "friendly meeting" at the clerk's office but that copies of many other records have not been provided.
Bernegger told the Milwaukee Journal Sentinel he is working with people of all political stripes but declined to disclose his own leanings. An online opinion piece posted under Bernegger's name in March questions the reliability of Wisconsin's elections, echoing themes that Trump routinely emphasizes.
"Here is the rigging I have found: numerous people showed up on election day last November 3rd in Wisconsin and were told 'you already voted' ... when they had not. More to come on this particular issue," the opinion piece states.
Prosecutors have not identified widespread fraud in Wisconsin, such as people voting in the names of others.
"We're looking into what happened and we'll release everything to the public — good or bad, whether it hurts us, harms us or not," Bernegger told the Journal Sentinel. "We're finding a lot of interesting things, I can tell you that. In the end I think it will help clerks run better elections."
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Michael Gableman reveals staffers in GOP-backed election investigation Former Trump administrator, head of Wisconsin Voter Alliance on payroll for taxpayer-funded effort by Corrinne Hess Published: Wednesday, December 1, 2021, 1:25pm
Former Wisconsin Supreme Court Justice Michael Gableman has revealed most of the staff working on an investigation into Wisconsin’s 2020 election. Gabelman has refused to answer questions regarding staff in the past.
During testimony Wednesday in front of state lawmakers, Gableman said his team members are paid between $40 an hour and $10,000 a month with taxpayer money.
Members include a former Trump administration official and the head of the Wisconsin Voter Alliance, which unsuccessfully asked the state Supreme Court to throw out the results of Wisconsin's presidential election and force the Legislature to certify the state's presidential electors instead.
Wednesday was only the second time Gableman has testified since the GOP-backed election inquiry was announced this summer. During the 60-minute testimony, discussions between Democratic lawmakers and Gableman got intense and at times resulted in brief shouting matches. At one point, Gableman threatened to leave if he wasn’t shown respect.
The team includes:
• Gableman, who is paid $11,000 per month. • Zakory Niemierowicz, a University of Wisconsin-Milwaukee graduate who heads human resources. Niemierowicz is paid $4,000 per month. • Andrew Kloster, a former Trump administration official who has falsely claimed the election was stolen from the former president. Kloster is paid $5,000 per month. • Carol Matheis, a California attorney active with the Federalist Society. Matheis is paid $5,000 per month. • Gary Wait, a former private investigator. Wait is paid $3,250 a month. • Ron Heuer, president of the Wisconsin Voter Alliance. Heuer is an investigator and paid $3,250 a month. • Arkansas attorney Clint Lancaster, who represented a woman who sued Hunter Biden, President Joe Biden's son, for paternity last year. Lancaster is paid $10,000 a month. • Former Milwaukee Police Department detectives Thomas Obregon, Neil Saxton and Edward Chaim. Each is paid $40 per hour. • There is one person Gableman said he will not identify to "protect his best interest with is full-time employer." That person is paid $40 per hour.
Gableman has been approved for an initial, taxpayer-funded budget of $680,000. He told lawmakers Wednesday he spent about $175,500 from this summer through November. These costs include staff, office space, office supplies and travel.
Gableman has been approved for an initial, taxpayer-funded budget of $680,000. He told lawmakers Wednesday he spent about $175,500 from this summer through November. These costs include staff, office space, office supplies and travel.
Assembly Speaker Robin Vos, R-Rochester, called for the investigation and announced Gableman as its leader this summer.
Rep. Mark Spreitzer, D-Beloit, asked Gableman how his election review could be legitimate if he has hired someone who has already sued to overturn the election.
"How can we take your investigation seriously?" Spreitzer said. "Shouldn’t we bring in someone above partisanship? Above reproach? Isn’t this just an extension of partisan activities?"
Gableman asked that Spreitzer's comments be "stricken from the record."
"My work and my employees will be judged by one thing: the finished work project," Gableman said. "Right now, what is preventing the finished work product is the fearful running and hiding of those government officials who do not want to be held accountable."
Gableman has issued subpoenas to state and local election officials to provide testimony and election records for the probe. After pushback over the large scope of the subpoenas, requests for documents were scaled back and in-person interviews were postponed.
Attorney General Josh Kaul, who represents the Wisconsin Elections Commission in his official capacity, has raised legal concerns with the investigation.
The Republican-backed election investigation comes after Wisconsin has completed a series of routine state election audits and a presidential recount in the state’s two largest counties. None of those reviews have uncovered widespread fraud or wrongdoing. There have also been numerous Republican-backed lawsuits in the state, all of which have failed to result in findings of wrongdoing by election officials or voters.
Biden won Wisconsin by about 21,000 votes — a margin similar to several other razor-thin statewide elections in recent years.
***************** Wisconsin man who's scanning ballots, conducting election review was convicted of fraud by Patrick Marley Milwaukee Journal Sentinel July 12, 2021, 2:21 PM BEHIND PAYWALL!
A small group of Wisconsinites conducting a review of the presidential election - including a felon convicted of fraud -- hopes soon to scan ballots in Brown County.
The group of about a half dozen volunteers has collected images of about 2 million ballots using the state's open records law, said Gary Walt, a former private investigator who is helping lead the effort. Those involved have visited two Dane County communities to scan ballots and examine them with microscopes.
Assisting Walt is Peter Bernegger of New London, who was convicted in 2009 of bank fraud and mail fraud. A federal judge in Mississippi sentenced him to 70 months in prison and ordered him to pay restitution of $2.1 million.
An appeals court upheld his conviction but lowered his restitution to $1.7 million. Bernegger has spent years fighting his conviction, filing numerous appeals.
Bernegger and Walt declined to name others involved in their ballot effort.
Bernegger early this month said he wasn't ready to talk about all his plans for reviewing the election. He did not answer questions asked later about his conviction.
Walt called Bernegger courageous for his willingness to pursue his election efforts knowing he would be questioned about his conviction.
Bernegger's fraud convictions stem from his involvement in getting people to invest in two startup companies, including one that purported to make gelatin from catfish waste. That company never made any sales, but Bernegger told investors business was going well, according to court documents.
When someone asked him why he didn't tell investors the truth, he responded, "They can't handle the truth," an appeals court noted when it upheld his conviction.
Bernegger and Walt's effort to review the presidential election comes as Republicans in the state Assembly conduct their own examination of it. Joe Biden narrowly defeated Donald Trump in Wisconsin, as confirmed by recounts in Dane and Milwaukee counties and a string of court rulings.
Top Wisconsin Republicans have acknowledged they cannot overturn the results of the election. Walt said he did not believe Republican lawmakers were going far enough with their review of the election but agreed there is no way to put Trump back in office before Biden's term is up.
"We're with Biden for the next three years whether we like it or not," he said. "What my intention is here is the voter integrity."
In mid-June, Bernegger sent an email to Republicans seeking to find volunteers to help with the review of ballots. He told them he was seeking to look at ballots in Brown, Door, Milwaukee, Sauk and Sawyer counties, according to a person who saw the email.
"Peter Bernegger is a convicted fraudster who swindled investors out of more than a million dollars," said a statement from Nellie Sires, executive director of the state Democratic Party. "This is yet another effort to create distrust in our election process and our democracy and won't prove anything we don't already know."
In an open records lawsuit Bernegger filed in December, he claimed 0the executive director of the Milwaukee Election Commission] was part of the so-called sect that he alleged "planned, conspired and implemented a massive election fraud" by using fake names and fake addresses to cast ballots. Bernegger alleged the group allowed an unnamed man from Illinois to ... [print] ballots for Biden in a back conference room ... his filing included a hand-drawn floor plan of an election office with a spot labeled "Hidden Room. Someone was sleeping? Snoring?"
*******************
And now that guy, the catfish waste into gelatin scam, make copies of all the ballots, there's a secret sect in a hidden room printing ballots for Biden guy, that guy, well, he was invited by Republicans to give a presentation to the State's assembly elections committee.
******************
PETER BERNEGGER, INVITED BY WISCONSIN GOP TO BRIEF ASSEMBLY ON ELECTION.
[Peter Bernegger] "Someone is using -- we don't know who -- someone is using our systems, our databases, to cast illegal ballots. We have found tens of thousands -- we don't know who's doing it, it's probably not the person who is the name, it's probably some bad guys. Something's wrong. Somebody's in there. Somebody's doing something wrong, casting illegal ballots. Somebody's in there. They're adding names. They're adding fake voters. They're casting illegal ballots by the tens of thousands. So I appreciate your time, and thank you for having me here.
[Crowd] [Claps]
*******************
With little evidence, felon tells Assembly committee there were thousands of illegal votes by Henry Redman Wisconsin Examiner February 10, 2022 6:45 AM
Peter Bernegger’s presentation included a number of slides with unproven claims. (Screenshot | WisEye)
A so-called “database analyst” presented what he said was evidence of millions of illegal voter registrations and hundreds of thousands of illegal votes in the 2020 election to the Assembly Committee on Campaigns and Elections on Wednesday.
Peter Bernegger, the grandson of the founders of sausage company Hillshire Farms who was convicted of bank fraud and mail fraud in 2009, said he’s been working with thousands of volunteers and a “supercomputer” to find evidence of fraud and misconduct in the state’s voter registration system. Despite repeated requests from Democrats on the committee, Bernegger refused to share further evidence or documentation of his allegations.
Bernegger said that his eight-step verification process, which he declined to elaborate on, has allowed his group to find evidence that people illegally voted twice, voted illegally from the wrong address or voted fraudulently in other ways. He also alleged that a “bad guy” could, without anyone noticing, access the state’s voter registration system and re-activate hundreds of thousands of voters who are listed as inactive because they’ve moved or died.
“We all know the official reported results, that Joe Biden won by 20,000 votes, but we have 46,000 people who voted and then were not verified by our system — that calls for a full investigation,” Bernegger said. “We’ve also found, using the supercomputer, there’s more than 1.5 million illegally registered voters in our state.”
Court decisions, recounts and investigations have repeatedly found that Biden won Wisconsin by about 20,000 votes and that there is no widespread evidence of fraud.
Bernegger called for a full investigation into his allegations and the dismantling of the Wisconsin Elections Commission. Bernegger has previously worked with former Wisconsin Supreme Court Justice Michael Gableman, who is conducting a widely criticized partisan review of the 2020 election on behalf of Assembly Republicans.
Gableman’s investigation has apparently looked into many of the same issues as Bernegger’s band of volunteers, dragging on for months longer than initially planned and spurring complaints and lawsuits along the way. Earlier this week, a Dane County judge called out Assembly Speaker Robin Vos (R-Burlington) for apparently deleting records related to Gableman’s work.
Election officials and Democrats said that Bernegger is drawing malicious conclusions out of easily explainable occurrences in the statewide voter registration database.
According to an explanation of the statewide system by the WEC’s technology director, odd entries are systematically examined and the built-in checks can resolve any problems — including duplicate registrations or clerical errors in information such as names or addresses.
“These are some odd entries but they all have a story. People forget (or don’t realize) just how many checks are built into the system,” the explainer, provided by WEC spokesperson Riley Vetterkind, states. “I’d caution that people should apply a critical eye to the spreadsheet snippets and homemade lists circulating. We see a lot of very old and/or inaccurate data being presented as representative of what is in the database.”
Bernegger said there were nefarious actors behind every corner of election administration and the maintenance of the state’s voter lists, allowing thousands of people to cast illegal ballots.
The statewide voter registration list includes more than 7 million entries, which includes years of voters who are still active and many who have been inactivated for various reasons. Despite election officials saying for months that this list isn’t how votes are tracked on Election Day and insisting it isn’t evidence of fraud that active and inactive voter files are stored in the same database, Bernegger repeatedly alleged this leaves the state open to fraud.
“You can see where we have a tremendous amount of inactive registered voters,” he said. “Now this gets to the crux of a problem. We know we have seen it with our own eyes. You could switch an inactive person to active with two clicks. We have seen it with our own eyes. It opens the door to fraud. Anybody in there, you’re talking electronic computer coding. Anybody gets access to the WisVote system, you can go in there, you could flip 100,000 people, vote them, set them back or take them off and nobody would ever know.”
Without evidence, Peter Bernegger told the Assembly Campaigns and Elections Committee he’d found hundreds of thousands of fraudulent votes. (Screenshot | WisEye)
Bernegger also raised a number of addresses where there are more voter files than people who live there, even though many of his examples are apartment buildings which could have high tenant turnover year to year.
He spent much of his testimony discussing the Electronic Registration Information Center (ERIC), an organization with dozens of member states that use the system to learn when voters move or die. Bernegger alleged that the organization is a plot to give its employees across the country access to sensitive voter information and that it is both improperly providing information and attempting to wrongly register people to vote.
Republicans in the Legislature passed a law requiring Wisconsin to be a member of ERIC and Republican allies previously filed a lawsuit that said the ERIC data is so accurate it must be used to deactivate people’s voter registrations, even if the data wrongly says they’ve moved.
Bernegger also stated that he and his group had filed 450 criminal referrals because of his findings, though he added it was too early to know if any charges would result.
Rep. Janel Brandtjen (R-Menomonee Falls), the committee’s chair and one of the Legislature’s most outspoken election conspiracy theorists, said several times that Bernegger’s testimony was not to be taken as him specifically accusing anyone of fraud and should only be taken as general information. Bernegger’s presentation included several examples of individual voters who he claimed had voted illegally in some way.
“I just wanna make sure you have said that we are looking at this information and we understand that we are not necessarily declaring fraud for anybody,” Brandtjen said. “We are asking questions about the data, the management, the duplication, so I think that [Bernegger] has mentioned several times that we are not claiming on one person, but we do have these questions.”
Rep. Lisa Subeck (D-Madison) took issue with that, saying that Brandtjen and Bernegger were giving different signals with Brandtjen saying these allegations should not be looked at specifically but Bernegger offering a number of specific examples in his testimony.
“I just want to be clear, though, that the presentation does draw conclusions about fraud, claiming that some individuals voted twice, talks about tens of thousands of illegally cast ballots to date,” Subeck said. “So, on one hand, you’re saying that there’s no conclusions about fraud, but the speaker is presenting it as if there are conclusions that have been drawn. And while that may be his conclusions, we certainly haven’t seen any documentation to back that up, nor have we seen law enforcement prosecutions to map that out.”
Subeck and Rep. Mark Spreitzer (D-Beloit) repeatedly asked Bernegger for proof to back up his claims outside of the screenshots of spreadsheets he displayed during his testimony. Bernegger refused, only saying he has “government documents” to verify what he’s saying.
Brandtjen was unbothered by Bernegger’s refusal to share his methods or his evidence, saying she understands why he wouldn’t want to give up the processes in the system he’s worked hard to develop.
“I know you’re being a little private about your process because, like I say, I know it’s taken you a lot of months to come up with it,” Brandtjen said. “I am not aware of the full system itself. But I’ve heard from some of your volunteers of the work that is being done.”
Bernegger said several times that he used the U.S. Postal Service’s change of address database to check if someone had actually moved, even though the Democrats repeatedly said there could be lots of reasons why someone would change their mailing address without changing their residential address for purposes of voting — such as going to college or maintaining a vacation home.
“There’s more innuendo here than there is actual evidence,” Spreitzer said.
Decision and Order on Motion: The People of the State of New York, by Letitia James v. The Trump Organization, Inc., et al. by Hon. Arthur Engoron 2/17/2022
[FILED: NEW YORK COUNTY CLERK 02/17/2022 04: 00 PM] INDEX NO. 451685/2020 NYSCEF DOC. NO. 654 RECEIVED NYSCEF: 02/17/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARTHUR ENGORON Justice -----------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, BY LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Petitioner, -v- THE TRUMP ORGANIZATION, INC., DJT HOLDINGS LLC, DJT HOLDINGS MANAGING MEMBER LLC, SEVEN SPRINGS LLC, ERIC TRUMP, CHARLES MARTABANO, MORGAN, LEWIS & BOCKIUS LLP, SHERI DILLON, DONALD J. TRUMP, IVANKA TRUMP, and DONALD TRUMP, JR., Respondents. ------------------------------------------------------------------X PART: 37 INDEX NO. 451685/2020 MOTION DATE 01/26/2022 MOTION SEQ. NO. 008 DECISION + ORDER ON MOTION
Upon the foregoing documents, it is hereby ordered that the motion by respondents Donald J. Trump, Ivanka Trump, and Donald Trump, Jr. to quash subpoenas issued by petitioner is denied, and petitioner's cross-motion to compel is granted.
Specifically, OAG is investigating whether respondents misstated the value of certain assets on annual financial statements, loan applications, tax submissions, and other official documents, and whether respondents made other material misrepresentations to third parties to secure favorable loan terms and insurance coverage and to obtain tax and other economic benefits.
OAG now claims that it has identified additional facts indicating that the aforesaid documents and others under investigation contain material misstatements and omissions and are materially inconsistent. OAG further states that to determine who is responsible for such alleged misstatements and omissions, it requires the testimony and evidence sought in subpoenas issued to newly joined respondents, Donald J. Trump, Ivanka Trump, and Donald Trump, Jr. (hereinafter, "the New Trump Respondents").
The New Trump Respondents now move to quash the subpoenas or, in the alternative, to stay their enforcement until the conclusion of OAG and/or the Manhattan District Attorney's criminal investigations and/or any other prosecutions of the Trump Organization. OAG now cross-moves to compel compliance with the subject subpoenas.
More than a year ago, at the outset of this special proceeding, this Court held that OAG's investigation, undertaken pursuant to New York Executive Law § 63(12), was lawful. The New Trump Respondents now ask this Court to re-examine the lawfulness of the investigation, arguing that OAG is using the existence of parallel civil and criminal investigations to circumvent the New Trump Respondents' rights under the United States and New York State Constitutions and New York statutory law.
Since this Court last issued a substantive Decision and Order in this case, the nature of OAG's investigation has expanded from purely civil to a civil/criminal hybrid. In a letter dated January 29, 2021, OAG informed the New Trump Respondents and respondent Eric Trump that the evidence reviewed to date could lead to criminal liability and prompt OAG to open a criminal investigation or make a criminal referral. NYSCEF Doc. No. 571. Subsequently, in a letter dated April 27, 2021, OAG informed the New Trump Respondents that "in addition to [OAG's] ongoing civil investigation, [OAG] is also engaged in a criminal investigation." NYSCEF Doc. No. 572.
Additionally, OAG has made numerous public statements confirming its ongoing assistance to the Manhattan District Attorney's criminal investigation into the Trump Organization. See. ~ Statement from Attorney General James on Criminal Indictment of Trump Organization and CFO Weisselberg. https://ag.ny.gov/press-release/2021/st ... on-and-cfo, last accessed February 16, 2022.
Discussion
The New Trump Respondents seek two alternative forms of relief: (1) quashing the subpoenas, on the ground that the hybrid civil/criminal investigation conducted by OAG is inherently unconstitutional and, therefore, the tools normally available to OAG (here, its subpoena power) are being used unlawfully; and (2) a stay of the civil, investigation until the conclusion of any criminal investigations on the ground that a stay is necessary to protect the New Trump Respondents' constitutional rights.
The Constitutional Arguments
Both the United States Constitution and the New York State Constitution, following in the footsteps of deep-rooted Anglo-Saxon law, guarantee that no witness may be compelled to give testimony that will incriminate himself or herself.
Additionally, New York Criminal Procedure Law 190.40 provides that:
1. Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.
2. A witness who gives evidence in a grand jury proceeding receives immunity unless:
(a) He has effectively waived such immunity pursuant to section 190.45; or
(b) Such evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.
(c) The evidence given by the witness consists only of books, papers, records or other physical evidence of an enterprise, as defined in subdivision one of section 175.00 of the penal law, the production of which is required by a subpoena duces tecum, and the witness does not possess a privilege against self-incrimination with respect to the production of such evidence. Any further evidence given by the witness entitles the witness to immunity except as provided in subparagraph1 (a) and (b) of this subdivision.
The New Trump Respondents argue that OAG is "endeavor[ing] to bypass the grand jury protections of New York's Constitution and CPL 190.40." NYSCEF Doc. No. 642 at 8. In support thereof, the New Trump Respondents assert that the issuance of civil subpoenas while a criminal investigation is ongoing allows OAG to extract information from them under the guise of a civil proceeding without OAG's having to offer them the immunity that a grand jury setting would afford them.
This argument completely misses the mark. Neither OAG nor the Manhattan District Attorney's Office has subpoenaed the New Trump Respondents to appear before a grand jury. Indeed, OAG affirms in its reply that it is not conducting a grand jury investigation of respondents. NYSCEF Doc. No. 645 at 2. Furthermore, New York prosecutors do not call the subjects of their criminal investigations to testify before grand juries about their suspected criminal conduct without first securing an immunity waiver. See Carey v Kitson, 93 AD2d 50, 64 (2nd Dep't 1983) (stating in dicta that that case "should again serve as a reminder to law enforcement officials of the consequences of calling a witness before a Grand Jury without obtaining a waiver of immunity"). There is no evidence to support the New Trump Respondents' suggestion that, in the absence of a parallel civil investigation, OAG would have been forced to subpoena the New Trump Respondents to appear before a grand jury, in which case they would have been entitled to immunity under CPL 190.40.
The New Trump Respondents' reliance on United States v Kordel, 397 US 1, 10 (1970), is also unpersuasive. In Kordel, the United States Supreme Court addressed the constitutional implications at issue when a governmental entity conducts simultaneous civil and criminal proceedings. The Kordel Court upheld the lawfulness of the parallel investigations. Specifically, the Kordel Court held:
For [respondent] need not have answered the interrogatories. Without question he could have invoked his Fifth Amendment privilege against compulsory self-incrimination. Surely [respondent] was not barred from asserting his privilege [simply] because the proceeding in which the Government sought information was civil rather than criminal in character.
Id. at 7-8. The New Trump Respondents' argument overlooks the salient fact that they have an absolute right to refuse to answer questions that they claim may incriminate them. Indeed, respondent Eric Trump invoked his right against self-incrimination in response to more than 500 questions during his one-day deposition arising out of the instant proceeding. NYSCEF Doc. No. 630 at 90.
The New Trump Respondents further cite to dicta in Kordel in which the Court stated:
We do not deal here with a case where the Government has brought a civil action solely to obtain evidence for its criminal prosecution or has failed to advise the defendant in its civil proceeding that it contemplates his criminal prosecution; nor with a case where the defendant is without counselor reasonably fears prejudice from adverse pretrial publicity or other unfair injury; nor with any other special circumstances that might suggest the unconstitutionality or even the impropriety of this criminal prosecution.
Id. at 11-12. For all that appears, we are not presented with any of those situations either. OAG pursued its civil investigation for more than a year without the slightest hint that it was a subterfuge to garner evidence for a criminal investigation in the offing. Notably, as discussed during this morning's oral argument, Donald J. Trump was hardly a stranger to the Attorney General's Office when Ms. James was campaigning to head that office. Ms. James' predecessors had investigated Donald J. Trump's "University" and "Foundation" and achieved significant settlements both times. A candidate for Attorney General would have been completely cognizant that, if elected, she would not be writing on a clean slate.
The New Trump Respondents further assert that public statements made by Attorney General Letitia James demonstrate the "impropriety" of her investigation. In support of this argument, they cite to dozens of public statements that James made, during her election campaign and afterward, indicating that she intended to investigate any illegal conduct of respondent Donald J. Trump. The statements range from relatively innocuous ("I believe that the President of these United States can be indicted for criminal offenses") to overtly aggressive ("Oh we're definitely going to sue him. We're gonna be a real pain in his ass. He's going to know my name personally"). NYSCEF Doc. No. 641. Citing Kordel, the New Trump Respondents claim that these statements demonstrate that OAG is acting with the "impropriety" upon which Kordel Court expressly withheld judgment.
However, the New Trump Respondents read Kordel's dicta for far more than it is worth. First, the Kordel Court expressly declined to rule on the situations described in its dicta, and the New Trump Respondents have failed to offer any more recent authority to support any implication that the facts presented here should merit a legal conclusion distinct from that in Kordel. Second, even assuming, arguendo, that the Kordel Court had held that those facts require a different outcome, the New Trump Respondents have failed to demonstrate that any of the factual criteria hypothesized in the Kordel dicta are present here. OAG has promptly and repeatedly informed the New Trump Respondents that they could be subject to both civil and criminal prosecution, and OAG's investigation is hardly unsubstantiated. Indeed, this Court's in camera review of the thousands of documents responsive to OAG's prior subpoenas demonstrates that OAG has a sufficient basis for continuing its investigation, which undercuts the notion that this ongoing investigation is based on personal animus, not facts and law.
Moreover, Attorney General James, just like respondent Donald J. Trump, was not deprived of her First Amendment rights to free speech when she was a politician running for a public office with investigatory powers. As the United States Court of Appeals for the 7th Circuit has observed:
Any effort by the judiciary to stop one politician from proposing and advocating steps that injure another politician would do more to violate the First Amendment (the right to advocate one's view of good policy is the core of free speech) than to vindicate the Equal Protection Clause ... A class-of-one claim cannot be used to attack political practices that are valid as a general matter but bear especially hard on one politician.
Jones v Markiewicz-Qualkinbush, 892 F3d 935, 939 (7th Cir 2018). As has often been said, that a prosecutor dislikes someone does not prevent a prosecution.
Furthermore, the New Trump Respondents' reliance on 303 W. 42nd St. Corp. v Klein, 46 NY2d 686 (1979), is misplaced. In that case the New York Court of Appeals examined whether the New York State and United States Constitutions require an evidentiary hearing when a petitioner challenging an administrative determination demonstrates with reasonable probability that the administrative determination was a result of unconstitutional First Amendment discrimination. While holding that petitioner was entitled to a hearing, the Court found:
The underlying right asserted by petitioner is to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution (art I, § 11), one of the governing principles of our society. As enunciated more than a century ago in Yick Wo v Hopkins (118 US 356, 373-374), it forbids a public authority from applying or enforcing an admittedly valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances". We have recognized the principle in cases involving the enforcement of the criminal laws and the administrative regulation of public health, safety and morals. To invoke the right successfully, however, both the "unequal hand" and the "evil eye" requirements must be proven --to wit, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification.
Id. at 693 (internal citations omitted). Here, the New Trump Respondents have failed to submit any evidence that the law was not applied to others similarly situated, nor have they submitted any evidence of discrimination based on race, religion, or any other impermissible or arbitrary classification.
For OAG not to have investigated the original respondents, and not to have subpoenaed the New Trump Respondents, would have been a blatant dereliction of duty (and would have broken an oft-repeated campaign promise). Indeed, the impetus for the investigation was not personal animus, not racial or ethnic or other discrimination, not campaign promises, but was sworn congressional testimony by former Trump associate Michael Cohen that respondents were "cooking the books." NYSCEF Doc. No. 644. See Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 332 (198'8) ("[ i]n defending his inquiry; the Attorney-General enjoys a presumption that he is acting in good faith").
Additionally, as the New Trump Respondents have failed to demonstrate a 'reasonable probability" of success on the merits, unlike the petitioners in 303 W. 42nd St. Corp., they are not entitled to "an evidentiary hearing before a judicial tribunal." 46 NY2d at 690.
Accordingly, OAG is not violating any rights that CPL 190.40 and the United States and New York State Constitutions afford the New Trump Respondents.
This Court notes in passing, and in dicta, that by letter dated February 9, 2022, Mazars USA LLC ("Mazars") (long-time accountant to respondents the Trump Organization and Donald J. Trump), informed the Trump Organization as follows:
[T]he Statements of Financial Condition for Donald J. Trump for the years ending June 30, 2011 - June 30, 2020, should no longer be relied upon and you should inform any recipients thereof who are currently relying upon one or more of those documents that those documents should not be relied upon.
We have come to this conclusion based, in part, upon the filings made by the New York Attorney General on January 18, 2022, our own investigation, and information received from internal and external sources. While we have not concluded that the various financial statements, as a whole, contain material discrepancies, based upon the totality of the circumstances, we believe our advice to you to no longer rely upon those financial statements is appropriate.
As we have stated in the Statements of Financial Condition, Mazars performed its work in accordance with professional standards.
NYSCEF Doc. No. 646. Upon this statement becoming public, on February 14, 2022, a spokesperson for the Trump Organization released the following statement to various media outlets:
[Mazars'] February 9, 2022 letter confirms that after conducting a subsequent review of all prior statements of financial condition, Mazars' work was performed in accordance with all applicable accounting standards and principles and that such statements of financial condition do not contain any material discrepancies. This confirmation effectively renders the investigations by the DA and AG moot.
The New Trump Respondents' lawyers have submitted serious, substantive, sophisticated legal arguments in support of quashing the subject subpoenas. Although this Court finds those arguments wanting, they are plausible and learned, and counsel made them in good faith. To proclaim that the Mazars' red-flag warning that the Trump financial statements are unreliable suddenly renders the OAG's longstanding investigation moot is as audacious as it is preposterous.
The Discretionary Stay
As an alternative to quashing the subject subpoenas, the New Trump Respondents ask this Court to exercise its discretion by granting a stay pursuant to CPLR 2201, which states: "Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just."
Relying on Access Cap., Inc. v DeCicco, 302 AD2d 48, 52 (1st Dep't 2002), which held "[ i]t is settled that invoking the privilege against self-incrimination is generally an insufficient basis for precluding discovery in a civil matter," OAG asserts that the New Trump Respondents have not demonstrated a sufficient basis for a stay. The New Trump Respondents argue that OAG's reliance on Access Cap., Inc. is baseless, as the facts at issue in that case did not involve the same prosecutor's office working on both a civil and criminal investigation. However, the legal principle remains the same regardless of any factual distinctions. Indeed, it is well settled: "[t]hat defendant's conduct also resulted in a criminal charge against him should not be availed of by him as a shield against a civil suit and prevent plaintiff from expeditiously advancing its claim." Paine, Webber, Jackson & Curtis Inc. v Malon S. Andrus, Inc., 486 F Supp 1118, 1119 (SDNY 1980); see also In re 650 Fifth Ave., 2011 WL 3586169 at 15 (SDNY Aug. 12, 2011), affd 2012 WL 363118 at 1 (SDNY Feb. 2, 2012) (denying stay and holding ''the Constitution does not guarantee that the exercise of Fifth Amendment rights will be without cost in the civil arena").
The target of a hybrid civil/criminal investigation cannot use the Fifth Amendment as both a sword and a shield; a shield against questions and a sword against the investigation itself. When they are deposed, the New Trump Respondents will have the right to refuse to answer any questions that they claim might incriminate them, and that refusal may not be commented on or used against them in a criminal prosecution. However, there is no unfairness in allowing the jurors in a civil case to know these refusals and to draw their own conclusions. EI-Dehdan v EI-Dehdan, 26 NY3d 19, 37 (2015) ("a negative inference may be drawn in the civil context when a party invokes that right against self-incrimination").
Accordingly, the Court, in its discretion, declines to issue a stay of OAG's civil investigation into the New Trump Respondents.
The Court has considered the New Trump Respondents' other arguments, including that OAG is violating their right to equal protection, and finds them to be unavailing and/or non-dispositive.
In the final analysis, a State Attorney General commences investigating a business entity, uncovers copious evidence of possible financial fraud, and wants to question, under oath, several of the entities' principals, including its namesake. She has the clear right to do so.
Conclusion
Thus, for the reasons stated herein, the motion of respondents Donald J. Trump, Ivanka Trump, and Donald Trump, Jr. to quash the subpoenas that the New York State Office of Attorney General issued to them or, in the alternative, to stay petitioner's civil investigation, is hereby denied, and petitioner's cross-motion to compel is hereby granted. Respondent Donald J. Trump is hereby ordered: (1) to comply in full, within 14 days of the date of this order, with that portion of the Office of the Attorney General's subpoena seeking documents and information; and (2) to appear for a deposition within 21 days of the date of this order. Respondents Ivanka Trump and Donald Trump Jr. are also hereby ordered to appear for depositions within 21 days of the date of this order.
The National Archives confirms it found classified materials at Mar-a-Lago by Zoe Christen Jones CBS News FEBRUARY 18, 2022 / 5:57 PM / CBS NEWS
The National Archives and Records Administration found classified materials in the 15 boxes of records it retrieved from former President Donald Trump's residence at Mar-a-Lago, according to a letter sent to the House of Representatives' Committee on Oversight and Reform on Friday.
"NARA has identified items marked as classified national security information within the boxes," archivist David S. Ferriero wrote in the letter. "Because NARA identified classified information in the boxes, NARA staff has been in communication with the Department of Justice."
Also in his letter, Ferriero said the National Archives found certain social media records were not captured and preserved, and Trump administration staffers "conducted official business using non-official electronic messaging accounts that were not copied or forwarded into their official electronic messaging accounts." It is working to get the missing records.
Ferriero also confirmed that some of the records it received from the Trump administration had been torn up. A portion of them had been taped back together by White House staff, while others had not been reconstructed.
Ferriero said the National Archives is still in the process of inventorying all 15 boxes but expects to be finished by February 25.
The letter was sent to the House Oversight and Reform Committee, which is investigating Trump's record-keeping practices, after it requested information from Ferriero about the boxes.
The National Archives obtained the presidential documents and communications from Trump's Florida residence last month. Under the 1978 Presidential Records Act, sitting presidents and their staff are required to preserve all memos, letters, emails, documents and official communications related to the president and then transfer them to the National Archives after the end of their term.
Earlier this month, the National Archives reportedly asked the Justice Department to investigate Trump's handling of presidential documents.
The Justice Department did not comment on a possible investigation, nor did the National Archives. "We do not comment on potential or ongoing investigations," a National Archives spokesperson said.
The National Archives' request does not mean an official investigation has begun, but is standard procedure in the case of potential criminal violations, a source told CBS News.
Anne Weismann, a lawyer who represented watchdog groups that have sued Trump over violations of the Presidential Records Act, told CBS News that the former president "clearly violated" the Presidential Records Act in "multiple ways," including by ripping up records.
Trump has pushed back against the narrative that he willfully destroyed important documents, saying the transfer of the boxes to the National Archives was an important step in preserving records from his administration.
"The media's characterization of my relationship with NARA is Fake News. It was exactly the opposite!" Trump said. "It was a great honor to work with NARA to help formally preserve the Trump Legacy."
Zak Hudak and Jacob Rosen contributed to this report.
D.C. District Court Judge Rules Trump Jan. 6 Civil Case Will Move Forward, Dismisses Cases For Some Allies by Rohini Kurup, Katherine Pompilio Lawfare Friday, February 18, 2022, 4:51 PM
On Feb. 18, Judge Amit Mehta of the U.S. District Court for the District of Columbia rejected former President Donald Trump’s effort to dismiss three lawsuits accusing him of bearing responsibility for the Jan. 6 attack on the U.S. Capitol. In the 112 page opinion, Mehta ruled that the three lawsuits brought against Trump by members of Congress and Capitol Police officers can move forward into the evidence-gathering phase and toward a trial, which leaves Trump and his allies vulnerable to demands for depositions and subpoenas.
The ruling determined that Trump could be held liable for his conduct in office.
“To deny a President immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent,” Mehta wrote. He explained that Trump did not have absolute immunity because his efforts to undermine the results of the 2020 election and his speech on Jan. 6 were not official acts.
Despite the ruling against Trump, Mehta dismissed the cases against Donald Trump Jr. and Rudy Giuliani—both of whom were named as the former president’s co-defendants. The judge also wrote that he would likely dismiss the case against Alabama Republican Mo Brooks. But he said the case would proceed against the far-right group the Oath Keepers and Proud Boys leader Enrique Tarrio.
Memorandum Opinion and Order Bennie Thompson, et al., v. Donald J. Trump USDC for the District of Columbia by Judge Amit P. Mehta February 18, 2022
Librarian's Comment:
[T]he phrase Colour of his Office appears as early as the thirteenth century, in an English statute providing "[t]hat no Escheator, Sheriff, nor other Bailiff of the King, by Colour of his Office, without special Warrant, or Commandment, or Authority certain pertaining to his Office, disseise any Man of his Freehold, nor of any Thing belonging to his Freehold." In his annotation of the statute, Sir Edward Coke explained the statutory phrase Per colour de son office:
Colore officii is ... a seisure unduly made against law. And he may do it colore officii in two manner of wayes: either when he hath no warrant at all, or when he hath a warrant, and doth not pursue it.
When the Reconstruction Congresses incorporated the phrase in the Civil Rights Acts of 1866 and 1871, under color of was a well known legal expression with a long and distinguished pedigree. Not surprisingly, the meaning of the phrase had shifted subtly as it was deployed in different doctrinal contexts that reflected different policy concems. Still, the central idea conveyed by the phrase had remained remarkably constant for six centuries: Under color of law referred to official action without authority of law, in the nineteenth as in the thirteenth century. At page 325 – 327.
[T]he obvious import of under color of law is that the phrase refers to official action that seems to be lawful and authorized, but turns out not to be. At page 328
[T]he misconduct of an official differs qualitatively from a mere private wrong.
As if an officer will take more for his fees than he ought, this is done colore officii sui, but yet it is not part of his office, and it is called extortion, . . . which is no other than robbery, but it is more odious than robbery, for robbery is apparent, and always hath the countenance of vice, but extortion, being equally as great a vice as robbery, carries the mask of virtue, and is more difficult to be tried or discerned, and consequently more odious than robbery.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BENNIE G. THOMPSON et al., Plaintiffs, v. DONALD J. TRUMP et al., Defendants.
Case No. 21-cv-00400 (APM)
ERIC SWALWELL, Plaintiff, v. DONALD J. TRUMP et al., Defendants.
Case No. 21-cv-00586 (APM)
JAMES BLASSINGAME & SIDNEY HEMBY, Plaintiffs, v. DONALD J. TRUMP, Defendant.
Case No. 21-cv-00858 (APM)
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
January 6, 2021 was supposed to mark the peaceful transition of power. It had been that way for over two centuries, one presidential administration handing off peacefully to the next. President Ronald Reagan in his first inaugural address described “the orderly transfer of authority” as “nothing less than a miracle.”1 Violence and disruption happened in other countries, but not here. This is the United States of America, and it could never happen to our democracy.
But it did that very afternoon. At around 1:30 p.m., thousands of supporters of President Donald J. Trump descended on the U.S. Capitol building, where Congress had convened a Joint Session for the Certification of the Electoral College vote. The crowd had just been at the Ellipse attending a “Save America” rally, where President Trump spoke. At the end of his remarks, he told rally-goers, “we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” The President then directed the thousands gathered to march to the Capitol—an idea he had come up with himself. About 45 minutes after they arrived, hundreds of the President’s supporters forced their way into the Capitol building. Many overcame resistance by violently assaulting United States Capitol Police (“Capitol Police”) with their fists and with weapons. Others simply walked in as if invited guests. As Capitol Police valiantly fought back and diverted rioters, members of Congress adjourned the Joint Session and scrambled to safety. So, too, did the Vice President of the United States, who was there that day in his capacity as President of the Senate to preside over the Certification. Five people would die, dozens of police officers suffered physical and emotional injuries and abuse, and considerable damage was done to the Capitol building. But, in the end, after law enforcement succeeded in clearing rioters from the building, Congress convened again that evening and certified the next President and Vice President of the United States. The first ever presidential transfer of power marred by violence was over.
These cases concern who, if anyone, should be held civilly liable for the events of January 6th. The plaintiffs in these cases are eleven members of the House of Representatives in their personal capacities and two Capitol Police officers, James Blassingame and Sidney Hemby (“Blassingame Plaintiffs”). Taken together, they have named as defendants: President Trump; the President’s son, Donald J. Trump Jr.; the President’s counsel, Rudolph W. Giuliani; Representative Mo Brooks; and various organized militia groups—the Proud Boys, Oath Keepers, and Warboys— as well as the leader of the Proud Boys, Enrique Tarrio.
Plaintiffs’ common and primary claim is that Defendants violated 42 U.S.C. § 1985(1), a provision of a Reconstruction-Era statute known as the Ku Klux Klan Act of 1871. The Act was aimed at eliminating extralegal violence committed by white supremacist and vigilante groups like the Ku Klux Klan and protecting the civil rights of freedmen and freedwomen secured by the Fourteenth Amendment. Section 1985(1) is not, however, strictly speaking a civil rights provision; rather, it safeguards federal officials and employees against conspiratorial acts directed at preventing them from performing their duties. It provides:
If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties.
42 U.S.C. § 1985(1). The statute, in short, proscribes conspiracies that, by means of force, intimidation, or threats, prevent federal officers from discharging their duties or accepting or holding office. A party injured by such a conspiracy can sue any coconspirator to recover damages. Id. § 1985(3).
Plaintiffs all contend that they are victims of a conspiracy prohibited by § 1985(1). They claim that, before and on January 6th, Defendants conspired to prevent members of Congress, by force, intimidation, and threats, from discharging their duties in connection with the Certification of the Electoral College and to prevent President-elect Joseph R. Biden and Vice President–elect Kamala D. Harris from accepting or holding their offices. More specifically, they allege that, before January 6th, President Trump and his allies purposely sowed seeds of doubt about the validity of the presidential election and promoted or condoned acts of violence by the President’s followers, all as part of a scheme to overturn the November 2020 presidential election. Those efforts culminated on January 6th, when the President’s supporters, including organized militia groups and others, attacked the Capitol building while Congress was in a Joint Session to certify the Electoral College votes. Notably, Plaintiffs allege that President Trump’s January 6 Rally Speech incited his supporters to commit imminent acts of violence and lawlessness at the Capitol. Plaintiffs all claim that they were physically or emotionally injured, or both, by the acts of the conspirators.
Plaintiffs advance other claims, as well. Swalwell alleges a violation of § 1986, a companion provision to § 1985. 42 U.S.C. § 1986. That statute makes a person in a position of power who knows about a conspiracy prohibited by § 1985, and who neglects or refuses to take steps to prevent such conspiracy, liable to a person injured by the conspiracy. Swalwell claims that President Trump, Trump Jr., Giuliani, and Brooks violated § 1986 by refusing to act to prevent the violence at the Capitol. Swalwell and the Blassingame Plaintiffs also advance numerous common law torts and statutory violations under District of Columbia law.
All Defendants have appeared except the Proud Boys and Warboys. Defendants have moved to dismiss all claims against them. They advance a host of arguments that, in the main, seek dismissal for lack of subject matter jurisdiction or for failure to state a claim. The parties have submitted extensive briefing on a range of constitutional, statutory, and common law issues. The court held a five-hour-long oral argument to consider them.
After a full deliberation over the parties’ positions and the record, the court rules as follows: (1) President Trump’s motion to dismiss is denied as to Plaintiffs’ § 1985(1) claim and certain District of Columbia–law claims and granted as to Swalwell’s § 1986 claim and certain District of Columbia–law claims; (2) Trump Jr.’s motion to dismiss is granted; (3) Giuliani’s motion to dismiss is granted; (4) the Oath Keepers’ motion to dismiss is denied; and (5) Tarrio’s motion to dismiss is denied. Separately, Brooks has moved to substitute the United States as the proper party under the Westfall Act. The court declines to rule on that motion and instead invites Brooks to file a motion to dismiss, which the court will grant for the same reasons it has granted Trump Jr.’s and Giuliani’s motions.
II. BACKGROUND
A. Facts Alleged
This summary of the alleged facts is drawn from the complaints in all three cases. There is substantial overlap, but there are some differences. The court has not referenced every fact alleged across the three complaints; this factual recitation is meant to summarize the main allegations. Additionally, a citation to one complaint should not be understood to mean that the allegation is not present in the other complaints. The court has limited the citations in the interest of efficiency. Additional facts will be referenced as appropriate in the Discussion section.
As is required on a motion to dismiss, the court assumes these facts to be “true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). These are not the court’s factual findings.
1. The Weeks Following the Election
a. False claims of election fraud and theft
President Trump began to sow seeds of doubt about the validity of the November 2020 presidential election in the weeks leading up to Election Day. Am. Compl., Blassingame v. Trump, No. 21-cv-00858 (APM) (D.D.C.), ECF No. 3 [hereinafter Blassingame Compl.], ¶ 13. He claimed, among other things, that there would be “fraud,” the election was “rigged,” and his adversaries were “trying to steal” victory from him. Id. ¶¶ 13, 16; Compl., Swalwell v. Trump, No. 21-cv-00586 (APM) (D.D.C.), ECF No. 1 [hereinafter Swalwell Compl.]; Mot. for Leave to File Am. Compl., ECF No. 11, Am. Compl., ECF No. 11-1, [hereinafter, Thompson Compl.], ¶ 33.2
On election night, the President claimed victory before all the votes were counted. He tweeted that “they are trying to STEAL the Election. We will never let them do it.” Blassingame Compl. ¶ 17. He also would say in a primetime television address the next day, “If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us.” Swalwell Compl. ¶ 33.
The President’s allies joined him in making similar claims. For example, on November 5, 2020, Brooks tweeted that he “lack[ed] faith that this was an honest election.” Id. ¶ 78. On November 6, 2021, Trump Jr. tweeted that his father’s campaign was uncovering evidence of voter fraud and that the media was creating a false narrative that voter fraud was not real. Id. ¶ 69. On November 7, 2020, one of President Trump’s lawyers, Rudolph Giuliani, held a press conference in suburban Philadelphia, during which he asserted that there was rampant voter fraud in Philadelphia and Pittsburgh, which accounted for the President’s loss in Pennsylvania. Thompson Compl. ¶ 38.
b. Efforts to influence state and local election officials
The President also took his case directly to state and local election officials. These meetings occurred by phone and in person, and centered mostly on Georgia, Michigan, and Pennsylvania. Swalwell Compl. ¶¶ 39, 45, 49, 52. In some instances, these efforts were followed by threatening words and conduct by some supporters.
In Georgia, for example, the President called Georgia’s Secretary of State an “enemy of the people” and tweeted about him over a dozen times. Swalwell Compl. ¶ 49. The Secretary and his family were then targeted by some of the President’s supporters with threats of violence and death. Id. ¶ 50. Another Georgia state official pleaded with the President to condemn death threats made to election workers in Georgia, but he refused to do so. Blassingame Compl. ¶ 29.
In another instance, in Michigan, on December 5, 2020, the President falsely declared that he had won almost every county in the state. Swalwell Compl. ¶ 40. The next day armed protesters went to the home of Michigan’s Secretary of State, demanding she overturn the election results. Thompson Compl. ¶ 50. During these weeks, the President also tweeted criticism of Republican governors in Arizona and Georgia, claiming that “[ i]f they were with us, we would have already won both.” Swalwell Compl. ¶ 36.
During these efforts, and aware of the threats directed against state election officials, the President tweeted, “People are upset, and they have a right to be.” Thompson Compl. ¶ 52.
The President’s allies, including Brooks and Giuliani, continued to support the President’s campaign to undo the election results. Brooks, for example, tweeted false claims that President-elect Joe Biden had not won Georgia, and he also announced that he would object to certifying the Electoral College ballots from Georgia. Swalwell Compl. ¶ 82. Giuliani also continued his efforts, falsely suggesting in mid-November that irregularities in Detroit were the reason for the President’s loss. Thompson Compl. ¶ 42. He asked then–Deputy Secretary of Homeland Security Ken Cuccinelli to seize voting machines. Swalwell Compl. ¶ 62. A Trump campaign attorney even suggested that an election official should be shot. Thompson Compl. ¶ 48.
c. “Stop the Steal” rallies
Dozens of protests sprung up around the country. Blassingame Compl. ¶ 22. Two in Washington, D.C., turned violent. On the evening of November 14, 2020, multiple police officers were injured and nearly two dozen arrests were made. Id. ¶ 26. Then, on December 12, 2020, supporters of the President clashed with District of Columbia police, injuring eight of them, which led to over 30 arrests, many for acts of assault. Id. ¶ 28. The President was aware of these rallies, as he tweeted about them, and he would have known about the violence that accompanied them. Id. ¶¶ 25, 27.
Organized militia groups attended these events in Washington, D.C. One of them was the Proud Boys. During a pre-election debate, the moderator asked whether President Trump would denounce white supremacist groups. When the President asked, “[W]ho would you like me to condemn?,” Vice President Biden suggested the “Proud Boys,” to which the President responded, “Proud Boys, stand back, and stand by.” Thompson Compl. ¶ 30. Tarrio, the head of the Proud Boys, tweeted in response, “Standing by sir.” Id.
Another militia group that came to Washington, D.C., for these rallies was the Oath Keepers. At the December rally, an Oath Keepers leader told the assembled crowd, the President “needs to know from you that you are with him, [and] that if he does not do it while he is commander in chief, we’re going to have to do it ourselves later, in a much more desperate, much more bloody war.” Id. ¶ 54.
2. Preparations for the January 6 Rally
On December 19, 2020, President Trump announced that there would be a rally in Washington, D.C., on January 6th, the day of the Certification of the Electoral College: “Big protest in D.C. on January 6th. Be there, will be wild!” Swalwell Compl. ¶ 86. The President and his campaign were involved in planning and funding the rally. He participated in selecting the speaker lineup and music, and his campaign made direct payments of $3.5 million to rally organizers. Thompson Compl. ¶¶ 68–69. Significantly, the rally was not permitted for a march from the Ellipse. Id. ¶ 90. The President and his campaign came up with the idea for a march to the Capitol. Id. ¶ 69.
Pro-Trump message boards and social media lit up after the President’s tweet announcing the January 6 Rally. Some followers viewed the President’s tweet as “marching orders.” One user posted, referring to the President’s debate statement to the Proud Boys, “standing by no longer.” Swalwell Compl. ¶ 88; Thompson Compl. ¶ 57. Other supporters explicitly contemplated “[s]torm[ing] the [Capitol],” and some posted about “Operation Occupy the Capitol” or tweeted using the hashtag #OccupyCapitols. Swalwell Compl. ¶ 89; Thompson Compl. ¶ 62.
The President knew that his supporters had posted such messages. He and “his advisors actively monitored the websites where his followers made these posts.” Thompson Compl. ¶ 66. News outlets, including Fox News, discussed them, as well. Id. On December 28, 2020, in widely publicized remarks, a former White House aide predicted, “there will be violence on January 6th because the president himself encourages it.” Id.
Trump’s allies also worked to promote the January 6 Rally. Trump Jr. posted a video on Instagram asking his followers to “Be Brave. Do Something.” Swalwell Compl. ¶ 74. Giuliani tweeted a video purporting to explain how Vice President Mike Pence could block the certification of the election results. Id. ¶ 65. Brooks posted on social media on the eve of the rally that the President “asked [him] personally to speak & tell the American people about the election system weaknesses that the Socialist Democrats exploited to steal this election.” Id. ¶ 84.
At the same time, members of the Proud Boys and the Oath Keepers began their preparations for the rally in earnest. On December 19 and 25, 2020, leaders of the Oath Keepers announced that they had “organized an alliance” and “orchestrated a plan” with the Proud Boys. Thompson Compl. ¶ 63. Tarrio said that the Proud Boys would turn out in “record numbers.” Id. ¶ 64. The groups also secured tactical and communications equipment. Id. ¶ 65. The Oath Keepers recruited additional members and prepared them with military-style training. Id. ¶ 127.
3. January 6th—The Riot at the Capitol Building
The “Save America” rally on the Ellipse began at about 7:00 a.m. Blassingame Compl. ¶ 58. Brooks took the stage around 8:50 a.m. Swalwell Compl. ¶ 84. The Congressman said, among other things, that “[w]e are great because our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives,” and that “[t]oday is the day American patriots start taking down names and kicking ass!” Id. ¶¶ 106, 108. After Brooks finished, Giuliani spoke. He repeated that the “election was stolen” and said that it “has to be vindicated to save our country.” Id. ¶ 113. Then, in the context of discussing how disputes over election fraud might be resolved, he proclaimed, “Let’s have trial by combat!” Id. ¶ 114. Trump Jr. gave the last speech before the President took to the podium. He spent much of his remarks claiming that the Republican Party belongs to Donald Trump. He also warned Republican members of Congress, “If you’re gonna be the zero, and not the hero, we’re coming for you, and we’re gonna have a good time doing it.” Id. ¶¶ 117–119.
At about noon, President Trump took the stage. Id. ¶ 121. The court will discuss the President’s speech in much greater detail later in this opinion, so recites only portions here. The President spoke for 75 minutes, and during that time, he pressed the false narrative of a stolen election. He suggested that Vice President Pence could return Electoral College ballots to the states, allowing them to recertify Electors, which would bring about an election victory. He urged rally-goers to “fight like hell,” and he told them that “you’re allowed to go by very different rules” when fraud occurs. Swalwell Compl. ¶¶ 126, 128. Early in the speech he referenced a march to the Capitol and said he knew the crowd would be going there to “peacefully and patriotically” make their voices heard. An hour later, he punctuated his speech by saying that the election loss “can’t have happened and we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” Thompson Compl. ¶ 88. He then directed his supporters to the Capitol. The crowd at various points responded, “Fight Like Hell. Fight for Trump,” and at other points, “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol right now.” Blassingame Compl. ¶ 61; Thompson Compl. ¶ 88.3 Responding to the President’s call, thousands marched to the Capitol building after he finished his remarks.
Meanwhile, Congress had convened a Joint Session at 1:00 p.m. to certify the Electoral College vote. Thompson Compl. ¶ 93. Outside the building, some supporters already had begun confrontations with Capitol Police. Even before the President’s speech had concluded, the Proud Boys, operating in small groups, had begun to breach the outer perimeter of the Capitol. Blassingame Compl. ¶ 66; Thompson Compl. ¶¶ 98–100. The Ellipse crowd began to arrive by 1:30 p.m. Blassingame Compl. ¶ 69. As their numbers grew, the crowd overwhelmed police and exterior barriers and entered the Capitol by 2:12 p.m. Swalwell Compl. ¶ 134. The Oath Keepers were among the crowd. Thompson Compl. ¶ 126. The Joint Session was suspended, and the Vice President and members of Congress were evacuated. Id. ¶ 111; Swalwell Compl. ¶¶ 135–136. Police officers, including the Blassingame Plaintiffs, were injured as violent confrontations continued with the President’s supporters.
4. The President’s Response
After his speech, the President returned to the White House and watched the events at the Capitol unfold on television. Thompson Compl. ¶ 106. Despite pleas from advisors and Congressmen, the President did not immediately call on his supporters to leave the Capitol building. Blassingame Compl. ¶¶ 114, 116; Thompson Compl. ¶ 123. At about 2:24 p.m., after rioters had entered the Capitol, he sent a tweet critical of the Vice President for lacking “the courage to do what should have been done to protect our Country and our Constitution.” Blassingame Compl. ¶ 116. Eventually, two hours later, the President would tell his supporters to stand down. He tweeted a video calling on them to “[g]o home. We love you. You’re very special.” Id. ¶ 125.
The President sent one more tweet that day. After police had cleared the Capitol, around 6:00 p.m., the President said: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. . . . Remember this day forever!” Id. ¶ 127.
The House of Representatives would later pass a single Article of Impeachment accusing President Trump of “Inciting an Insurrection,” but the Senate would acquit him after he left office.
B. Procedural History
1. Thompson v. Trump
The Thompson case was the first to come before the court on February 16, 2021. See Compl., ECF No. 1. The plaintiffs in that case are ten members of the House of Representatives.4 Although the case is captioned Thompson v. Trump, the court will refer to these plaintiffs as the “Bass Plaintiffs”—after the second named plaintiff, Representative Karen R. Bass—because the lead plaintiff, Representative Bennie G. Thompson, voluntarily dismissed his claims after his appointment to serve as the chair of the Select Committee to Investigate the January 6th Attack on the United States Capitol. See Notice of Voluntary Dismissal, ECF No. 39. Although all are elected officials, the Bass Plaintiffs have filed suit in their personal capacities. See Thompson Compl.
The Bass Plaintiffs have named six defendants: President Trump, Giuliani, the Oath Keepers, Proud Boys International, Warboys LLC, and Tarrio. Id. They assert a single claim against all Defendants: a violation of 42 U.S.C. § 1985(1). Id. at 60. All Defendants except the Proud Boys and Warboys have appeared and moved to dismiss the claim against them. See Def. Oath Keepers’ Mot. to Dismiss, ECF No. 20 [hereinafter Thompson Oath Keepers’ Mot.]; Def. Giuliani’s Mot. to Dismiss, ECF No. 21, Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF No. 21-1 [hereinafter Thompson Giuliani Mot.]; Def. Trump’s Mot. to Dismiss, ECF No. 22, Mem. in Supp. of Def. Trump’s Mot. to Dismiss, ECF No. 22-1 [hereinafter Thompson Trump Mot.]; Def. Tarrio’s Notice of Intention to Join Mots. to Dismiss, ECF No. 64.
2. Swalwell v. Trump
Representative Eric Swalwell filed his action on March 5, 2021, also in his personal capacity. Swalwell Compl. He named as defendants President Trump, Trump Jr., Brooks, and Giuliani. His Complaint advances a host of federal and District of Columbia–law claims against all Defendants: (1) violation of § 1985(1) (Count 1); (2) violation of 42 U.S.C. § 1986 (Count 2); (3) two counts of negligence per se predicated on violations of District of Columbia anti-rioting and disorderly conduct criminal statutes (Counts 3 and 4); (4) violation of the District of Columbia anti-bias statute, D.C. Code § 22-3701 et seq. (Count 5); (5) intentional infliction of emotional distress (Count 6); (6) negligent infliction of emotional distress (Count 7); (7) aiding and abetting common law assault (Count 8); and (8) negligence (Count 9). Id. at 45–62.
Each Defendant except Brooks has moved to dismiss all claims against him. See Def. Giuliani’s Mot. to Dismiss, ECF No. 13, Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF No. 13-1 [hereinafter Swalwell Giuliani Mot.]; Defs. Trump & Trump Jr.’s Mot. to Dismiss, ECF No. 14, Mem. in Supp. of Trump & Trump Jr.’s Mot. to Dismiss, ECF No. 14-1 [hereinafter Swalwell Trump Mot.].
Brooks has moved for a scope-of-office certification under the Westfall Act, 28 U.S.C. § 2679. See Pet. to Certify Def. Mo Brooks Was Acting Within Scope of His Office or Employment, ECF No. 20. Under the Westfall Act, if the Attorney General certifies that a tort claim against an employee of government—including a member of Congress—arises from conduct performed while “acting within the scope of his office or employment,” the United States is to be substituted as the defendant. 28 U.S.C. § 2679(d)(1). Brooks asked the Attorney General for a Westfall Act certification, but he declined the request. See U.S. Resp. to Def. Mo Brooks’s Petition to Certify He Was Acting Within Scope of His Office or Employment, ECF No. 33 [hereinafter U.S. Resp. to Brooks]. Notwithstanding the Attorney General’s denial, the Westfall Act authorizes a court to make the requisite certification. See 28 U.S.C. § 2679(d)(3) (“In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment.”). Brooks seeks such relief from the court.
3. Blassingame v. Trump
The third action is brought by James Blassingame and Sidney Hemby, two Capitol Police officers who were on duty and injured on January 6th. They name only President Trump as a defendant. Blassingame Compl. They advance numerous federal and District of Columbia–law claims: (1) directing assault and battery (Count 1); (2) aiding and abetting assault and battery (Count 2); (3) directing intentional infliction of emotional distress (Count 3); (4) two counts of negligence per se predicated on violations of District of Columbia anti-rioting and disorderly conduct criminal statutes (Counts 4 and 5); (5) punitive damages (Count 6); (6) violation of § 1985(1) (Count 7); and (7) civil conspiracy in violation of common law (Count 8). See id. at 36–48.
Defendant Trump has moved to dismiss all counts against him. Def. Trump’s Mot. to Dismiss, ECF No. 10, Def.’s Mem. in Supp. of His Mot. to Dismiss, ECF No. 10-1 [hereinafter Blassingame Trump Mot.].
4. The Motions to Dismiss
Defendants’ arguments for dismissal are the same across all three cases. Generally, all Defendants contend the following: (1) Plaintiffs lack standing to sue under Article III of the Constitution; (2) the First Amendment bars Plaintiffs’ claims; and (3) Plaintiffs have failed to state claims under § 1985(1) and District of Columbia law. President Trump advances a number of contentions that are specific to him: (1) he is absolutely immune from suit; (2) the political question doctrine renders these cases nonjusticiable; (3) the Impeachment Judgment Clause bars civil suits against a government official, like him, acquitted following impeachment; and (4) the doctrines of res judicata and collateral estoppel premised on his acquittal by the Senate preclude all of Plaintiffs’ claims.
The court held oral argument on January 10, 2022, on Defendants’ motions. See Hr’g Tr., ECF No. 63.
This section consists of two subparts: a discussion of (1) whether the court has subject matter jurisdiction to hear these actions, and if it does, (2) whether Plaintiffs have stated cognizable claims. The court begins, where it must, with determining whether it has jurisdiction to hear these matters.
A. Subject Matter Jurisdiction
Defendants’ challenge to the court’s subject matter jurisdiction requires the court to make four inquiries: (1) whether Plaintiffs have Article III standing to sue, (2) whether President Trump enjoys absolute immunity from suit, (3) whether the cases present a political question that is nonjusticiable as to President Trump, and (4) whether the claims against President Trump are barred by the Impeachment Judgment Clause. 5 The court also addresses in this portion of the opinion President Trump’s res judicata and collateral estoppel defenses, which, although not jurisdictional in nature, logically fit here because they are premised on his acquittal following impeachment.
The court holds that (1) all Plaintiffs have plausibly established Article III standing, (2) President Trump is not absolutely immune from suit, except as to Swalwell’s § 1986 failure-to-act claim (Count 2), (3) the political question doctrine does not bar the court’s review, (4) the Impeachment Judgment Clause does not foreclose the claims against President Trump, and (5) the doctrines of res judicata and collateral estoppel do not preclude litigation of the case or any claim or fact against President Trump. The court takes up these issues in the order listed.
1. Article III Standing
The Article III standing arguments made by Defendants are of two varieties. First, President Trump maintains that Swalwell and the Bass Plaintiffs “have not alleged a particularized injury causally connected to Mr. Trump.” Thompson Trump Mot. at 15; Swalwell Trump Mot. at 16–17 (arguing that Swalwell “failed to allege any concrete injury caused by Defendants”). Second, the Oath Keepers contend that the Bass Plaintiffs lack standing to sue in their personal capacities to redress the alleged interference with their official duty to attend and participate in the Certification of the Electoral College vote. Thompson Oath Keepers’ Mot. at 17. Neither contention has merit.
a. The elements of standing
A plaintiff in federal court bears the burden of showing that she meets the “irreducible constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). To establish standing at the motion to dismiss stage, the plaintiff “must state a plausible claim that [she has] suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (internal quotation marks omitted). The court must accept the well-pleaded allegations of the complaint as true and draw all inferences in favor of the plaintiff. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
The primary question the court faces concerns “injury in fact, the first and foremost of standing’s three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (internal quotation marks and alteration omitted). In one sense that inquiry here is easy; in another, it is a bit more complicated. The easy establishment of a concrete injury is in Blassingame and as to one Plaintiff in Thompson. “If a defendant has caused physical . . . injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021). The Blassingame Plaintiffs claim to have suffered physical injury. Blassingame Compl. ¶ 83 (“Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back.”); id. ¶ 88 (alleging Officer Hemby suffered “cuts and abrasions” over his face and hands); id. ¶ 109 (“The insurrectionists struck Officer Blassingame in his face, head, chest, arms, and what felt like every part of his body.”).6 So, too, does Bass Plaintiff Jayapal. See Thompson Compl. ¶¶ 197, 203, 208 (alleging that she had a recent knee-replacement surgery and the evacuation from the House Gallery caused her to suffer “throbbing pain in her greatly swollen knee,” and that she “endured significant pain and experienced setbacks in her knee replacement surgery recovery”). Because only one plaintiff must establish standing in Thompson, the court need not inquire as to the other Bass Plaintiffs. See In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012).
The more challenging question surrounding injury in fact relates to Swalwell in his individual case. He does not allege any physical injury, only emotional harm. Swalwell Compl. ¶¶ 149, 223 (claiming “severe emotional distress”). For his common law claims, such harm is sufficient to establish an injury in fact. See, e.g., TransUnion LLC, 141 S. Ct. at 2211 n.7 (acknowledging that emotional or psychological injury suffices for the tort of intentional infliction of emotional distress). But not automatically so for his claims under § 1985(1) and § 1986 of the Ku Klux Klan Act. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (stating that “a plaintiff must demonstrate standing for each claim he seeks to press” (internal quotation marks omitted)). As to those claims, a question remains whether emotional harm is sufficiently “concrete” to establish Article III standing. Spokeo, 578 U.S. at 340. To determine “whether [such an] intangible harm” is sufficiently concrete, courts must consider “both history and the judgment of Congress.” Id. As to history, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. at 341. And, as to Congress’s judgment, courts must ask “whether Congress has permissibly sought to ‘elevate to the status of legally cognizable injuries concrete de facto injuries that were previously inadequate in law[.]’” Magruder v. Capital One, Nat’l Ass’n, 540 F. Supp. 3d 1, 7 (D.D.C. 2021) (quoting Spokeo, 578 U.S. at 341).
The parties have devoted scant attention to these questions. The court has considered them, however, and concludes that emotional harm is sufficiently concrete to establish Article III standing for claims asserted under § 1985(1) and § 1986. Starting with history, the alleged intangible harm here—emotional distress—has long been accepted as a basis for certain types of suits in American courts. “Emotional harm has long-standing recognition as a compensable injury as a parasitic harm to personal injury or property damage claims, usually referred to as a claim for pain and suffering.” Betsy J. Grey, The Future of Emotional Harm, 83 FORDHAM L. REV. 2605, 2610 (2015). Additionally, “[c]ommon law . . . traditionally recognized emotional harm claims as a component of trespassory torts like assault, false imprisonment, and defamation, allowing a presumption of damages without a showing of related physical injury.” Id. This common law tradition dovetails with the plain text of § 1985(1) and Congress’s reasons for enacting it. The statute creates a cause of action for a person “injured in his person or property” due to a proscribed conspiracy. 42 U.S.C. § 1985(3). The statute makes no distinction between physical and emotional injury, and in that sense it aligns with the common law tradition of permitting recovery for emotional distress for certain torts without a showing of physical injury. And, though the statute “was enacted by a Congress acutely aware of the massive and frequently violent resistance in the southern states to federal Reconstruction after the Civil War,” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977), courts have broadly interpreted § 1985(1) consistent with its “terms and legislative intent . . . , which [are] directed against efforts to impede governmental operations by interfering with officials in the discharge of their duties.” Lawrence v. Acree, 665 F.2d 1319, 1329 (D.C. Cir. 1981) (Wald, J., concurring) (citing Stern, 547 F.2d 1329). Permitting recovery for emotional harm arising from such interference is consistent with that intent. The court thus concludes that “history and the judgment of Congress” support recognizing emotional harm as a concrete injury to establish standing to bring claims under § 1985(1) and § 1986.
This conclusion is buttressed, at least implicitly, by two D.C. Circuit decisions. In both Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004), and Hall v. Clinton, 285 F.3d 74 (D.C. Cir. 2002), the court faced claims brought under § 1985(1). In Barr, the court dismissed the claim based on the statute of limitations and the First Amendment, 370 F.3d at 1202–03, and in Hall, it dismissed based on the statute of limitations alone, 285 F.3d at 82. In both cases, the plaintiff alleged emotional distress as their injury, Barr, 370 F.3d at 1200; Hall, 285 F.3d at 77, yet in neither did the court address whether emotional harm was a concrete injury for purposes of Article III. Perhaps that is because the sufficiency of such injury was so obvious it did not need to be addressed. Barr and Hall therefore support the court’s conclusion.
President Trump also contests whether Swalwell and the Bass Plaintiffs have plausibly demonstrated the second element of standing—causation. He contends that their claimed injuries were caused not by his challenged actions, but by “the independent and intervening acts of third-party rioters.” Swalwell Trump Mot. at 16. He also contends that causation is lacking because “Plaintiffs did not properly allege a conspiracy.” Thompson Trump Mot. at 15. But these arguments misconstrue the standing inquiry. In “reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims.” City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003); see also Weissman v. Nat’l R.R. Passenger Corp., 21 F.4th 854, 857 (D.C. Cir. 2021) (citing City of Waukesha, 320 F.3d 228). Thus, in assessing Plaintiffs’ standing here, the court must assume that Plaintiffs have successfully pleaded an actionable conspiracy under § 1985(1): that is, President Trump did conspire “to prevent, by force, intimidation, or threat,” (1) President Biden and Vice President Harris “from accepting or holding any office, trust, or place of confidence under the United States” and (2) members of Congress from lawfully discharging their constitutional and statutory duties with respect to certifying the Electoral College vote. Viewed in this way, it is apparent that Plaintiffs’ injuries are “fairly traceable” to President Trump’s alleged actions as a coconspirator, and “not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (cleaned up) (emphasis added).
Finally, Plaintiffs’ injuries are redressable with money damages. The court therefore is satisfied that Plaintiffs have sufficiently alleged the requisite elements of standing.7
b. Legislator standing
The Oath Keepers take a different tack on standing. They assert that the Bass Plaintiffs’ injuries are institutional in nature—that is, they derive exclusively from their positions as members of the House. The Oath Keepers contend that if their injuries are so understood, the Bass Plaintiffs, as individual members, lack standing to vindicate an institutional injury. Oath Keepers Mot. at 17–26. The court might agree with this line of argument if the Bass Plaintiffs were claiming no more than that the riot interfered with their abilities to carry out their legislative duties. But that is not what they allege. They do not advance an institutional injury, such as the “dilut[ion] [of] their Article I voting power.” Raines v. Byrd, 521 U.S. 811, 817 (1997) (internal quotation marks omitted). Their injuries are instead personal: emotional distress in the main, as well as physical injury to Jayapal. Thompson Compl. ¶ 265 (“During the time when the Capitol was under attack, each of the Plaintiffs named above suffered emotional harm.”). Personal harm is the basis for their standing and, as discussed, it is sufficient for purposes of Article III.8
2. Presidential Immunity
The court turns next to the question of presidential immunity. President Trump contends that under the Supreme Court’s decision in Nixon v. Fitzgerald, 457 U.S. 731 (1982), he is absolutely immune from damages liability in all three cases because his alleged conduct fell within the “outer perimeter” of his official presidential responsibilities. See Swalwell Trump Mot. at 8–11; Thompson Trump Mot. at 8–11; Blassingame Trump Mot. at 7–13. This is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few. After careful consideration, the court concludes that, on the facts alleged, absolute immunity does not shield President Trump from suit, except as to Swalwell’s § 1986 failure-to-act claim.
a. The scope of a President’s absolute immunity against damages liability
The court’s discussion naturally begins with the Supreme Court’s decision in Nixon v. Fitzgerald. In that case, a former federal employee sued President Richard Nixon and various Executive Branch officials for damages arising from his termination from employment. Fitzgerald, 457 U.S. at 733–39. The plaintiff claimed that President Nixon was directly involved in his firing and that the action was undertaken in retaliation for his having publicly revealed during congressional hearings cost overruns in the Department of the Air Force. See id. The plaintiff asserted two statutory claims and one claim under the First Amendment against President Nixon, who by that point no longer occupied the Office of the President. See id. After the D.C. Circuit declined to dismiss the case on the ground of absolute presidential immunity, the Supreme Court took up the question of the “scope of immunity available to a President of the United States.” Id. at 741.
The Court held that President Nixon enjoyed absolute immunity from the plaintiff’s suit: “[W]e hold that petitioner, as former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.” Id. at 749. The Court continued: “We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers.” Id. Central to the Court’s determination was the “unique position in the constitutional scheme” that the President occupies. Id. The Court observed that, “as the chief constitutional officer of the Executive Branch,” the President is “entrusted with supervisory and policy responsibilities of the utmost discretion and sensitivity.” Id. at 750. Those responsibilities include taking care that the laws be faithfully executed; conducting foreign affairs; and managing the Executive Branch. Id.; see also Trump v. Vance, 140 S. Ct. 2412, 2425 (2020) (describing the President’s “duties, which range from faithfully executing the laws to commanding the Armed Forces,” as “of unrivaled gravity and breadth”). Though the Court had previously held that qualified immunity struck the proper separation-of-powers balance for cabinet officers, the Court said that “[t]he President’s unique status under the Constitution distinguishes him from other executive officials.” Fitzgerald, 457 U.S. at 750. For a President, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Id. at 751. Indeed, because the President must concern himself with “matters likely to ‘arouse the most intense feelings,’” “there exists the greatest public interest in providing an official the maximum ability to deal fearlessly and impartially with the duties of his office.” Id. at 752 (internal quotation marks omitted). The Court also weighed the “sheer prominence” of the President’s office, which makes him “an easily identifiable target for suits for civil damages.” Id. at 752–53. “Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.” Id.
The Court then defined the scope of a President’s absolute immunity. It observed that “the sphere of protected action must be related closely to the immunity’s justifying purposes.” Id. at 755. That principle militated in favor of expansive immunity: “In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Id. at 756. The Court recognized that given the “broad variety of areas, many of them highly sensitive,” of presidential discretionary responsibility, in “many cases it would be difficult to determine which of the President’s innumerable ‘functions’ encompassed a particular action.” Id. Such function could not, however, be defined by probing the President’s motive for the contested action or by simply claiming a violation of law. The plaintiff in Fitzgerald, for example, could not avoid the immunity bar by alleging that the President’s motive for terminating him was retaliatory, and thus unlawful, and therefore fell outside the outer perimeter of his duties. See id. at 756. Such a “construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.” Id. President Nixon thus enjoyed absolute immunity from suit because it was clearly within his constitutional and statutory authority to prescribe reorganizations and reductions in force within a military branch— the stated reason for Plaintiff’s termination. Id. at 757. Such action “lay well within the outer perimeter of [a President’s] authority.” Id.
Fitzgerald thus established a scope of presidential immunity for civil money damages that is unquestionably capacious, though not categorical. The Supreme Court contemplated that, at least, there might be some actions by a President that would fall outside the outer perimeter of his official responsibilities and expose him to a civil suit. What lay beyond the outer perimeter would come into some focus fifteen years later in Clinton v. Jones.
There, President Bill Clinton, while in office, faced a suit by Paula Jones that, in the main, alleged that he had engaged in sexually inappropriate conduct while he was the Governor of Arkansas and had retaliated against her for rebuffing his advances. Clinton v. Jones, 520 U.S. 681, 686 (1997).9 Such acts, the Court said, were “unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office.” Id. at 686. President Clinton nevertheless urged the Court to hold that “the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office.” Id. at 692. The Court rejected the President’s call for “temporary immunity.” Id. It reasoned that the principal rationale for affording certain public servants absolute immunity was to enable “such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability,” and that such rationale did not apply to “unofficial conduct.” Id. at 693–94. The Court emphasized that in defining the scope of immunity it had taken a “functional approach,” and that “immunities are grounded in the nature of the function performed, not the identity of the actor who performed it.” Id. at 694–95 (internal quotation marks omitted). It concluded: “With respect to acts taken in his ‘public character’—that is, official acts—the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.” Id. at 696.10
Highlights:
During his last days in the White House, Donald Trump spent a lot of time thinking about the one and only election he ever lost, plotting every way he could to try to change the results.
He thought about when to leave Washington. He thought about what he should do when he gets to Florida. He thought about whether to pardon his family, even himself.
These are the things that consumed him as he roamed around the increasingly empty White House.
In the last days of Trump’s presidency, the things that preoccupied Trump were not the things that preoccupied other Americans. He was not preoccupied with the deadly riot he had incited, that left Capitol Hill terrorized, that had led to his second impeachment. He was not preoccupied with the coronavirus pandemic that killed 400,000 Americans, infected millions more, decimated the economy and is still raging across the United States....
His last days were quiet. He insisted he was working. “President Trump will work from early in the morning until late in the evening … ” his public schedule said each day. But he wasn’t really working. He was disappearing.
He was a man, a leader, a president almost unrecognizable to those who had watched him over the past four years. Diminished. Adrift, Sullen. Nearly 50 current and former Trump aides and Republican allies describe Trump's final days in office as a countdown to oblivion—with the energy of a once-chaotic West Wing draining away while signs heralding the coming of his replacement appeared outside their windows.
In the last days, the man who had imposed himself so relentlessly on the public—whose all-hours tweetstorms and rants troubled our sleep and harried our days—faded from view into a gloomy purgatory of his own design.
He’s “like a ghost” in his own White House, said a White House official.
In the last days, he was president but not quite present.
JANUARY 6...
In the Oval Office that morning, Trump pushed Mike Pence to use his position overseeing the certification of the Electoral College results later that afternoon to block Biden’s victory....
Now, the man who was his most unquestioningly faithful servant was finally telling him no.
Trump was livid. In retribution, he instructed chief of staff Mark Meadows and John McEntee, one of Trump’s most trusted aides, to ban Pence’s chief of staff from the White House complex....
Two hours later, Trump carried his simmering rage at Pence’s refusal to the “Stop the Steal” rally he had arranged at the Ellipse, just south of the White House. “You’ll never take back our country with weakness,” Trump told thousands of his supporters. “You have to show strength, and you have to be strong.” Then he urged them to march to the Capitol.
They did. Hundreds of protesters clad in MAGA gear burst through a security perimeter—injuring U.S. Capitol Police officers in the process—and poured into the halls of Congress. They broke windows, scaled walls, emptied fire extinguishers and stalked outnumbered police. They prowled through the House and Senate chambers, stopped to pose for selfies, and left a trail of ransacked offices and graffiti.
Trump watched it unfold on television in the private dining room off the Oval Office, seemingly oblivious to the dangers of an armed mob loose inside the halls of the Capitol. Others around him understood the implications and tried to persuade their boss to act—and act responsibly....
Trump took quickly to Twitter, too — before his staff could urge him to alter his message. But instead of urging rioters to stop, he blasted Pence for blocking Biden’s victory. A few minutes later, he tweeted his support of the Capitol Police and asked rioters to “stay peaceful.”
They didn’t. And the injuries and the death toll climbed. Protester Ashli Babbitt was shot as she was trying to go through the shattered window of a door leading to the Speaker’s Lobby. Capitol Police Officer Daniel Hodges was crushed in a door. Lawmakers cowered under desks and behind chairs, frantically calling everyone they could think of — the secretary of Defense, the attorney general, the Army secretary — to get more police to the Capitol.
Former New Jersey Gov. Chris Christie repeatedly tried to get in touch with Trump. House Minority Kevin McCarthy, one of the president’s closest allies, called Trump and “begged” Trump to put out a stronger statement. Kellyanne Conway, a former aide who remains close to the president, called the White House after the D.C. mayor’s office asked her help getting Trump to call up the National Guard.
Inside the White House, there was paralysis.... Several aides, including Trump's daughter and senior adviser, Ivanka Trump, urged the president to say more.... Instead, at 4:17 p.m., Trump released a video. “Go home,” he told the rioters before reassuring them that “We love you.”...
“The first video out in the Rose Garden was never going to be a good idea because it was a continuation of the rally,” a former White House aide said. “It’s almost as if he was still in rally mode.”...
Trump, still fuming about Pence’s decision not to interfere with the certification, never called his vice president.... it would be days before the two men spoke directly....
Trump tweeted again: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” An hour later, Twitter slapped his account with a temporary suspension....
With the smell of tear gas still lingering in the corridors, Trump’s lawyer, Rudy Giuliani phoned newly elected Republican senator Tommy Tuberville and left a long message that managed not to mention any of the day’s drama but rather urged him to “slow down” the certification....
Trump’s concession, such as it was, came in the middle of the night, exactly two months after he had first refused to accept that he had lost the election.
At 3:45 a.m., Congress, having summoned its collective rage at the rioters and the man who had dispatched them, confirmed Biden would be America's 46th president. With the vote, any remaining hope Trump had that he might cling to power for another term vanished....
[A] defeated Trump did what had been unthinkable just days earlier and publicly acknowledged that a new administration would be coming into office....
"Even though I totally disagree with the outcome of the election, and the facts bear me out, nevertheless there will be an orderly transition on January 20th."...
JANUARY 7...
Dawn broke with the first of a series of resignations. About 7 a.m., his former chief of staff Mick Mulvaney, who had been serving as a special envoy to Northern Ireland, publicly announced his departure. ”I can’t do it. I can’t stay,” he said. By the end of the day, at least a dozen Trump officials had said versions of the same—ranging from Cabinet secretaries and national security experts to senior agency appointees. Other staffers opted to work remotely to stay far away from the West Wing, or not to work at all.
“This has all been part of a big f--king show ... That’s what is so infuriating about the whole thing,” said a national GOP strategist who worked to elect Trump. “He knows he lost. He’s a showman. And that showmanship had unintended consequences.”...
For the increasingly isolated president, the pile-on didn’t stop with the steady stream of resignations. When the deaths of five people during the riots were confirmed—including Capitol Police officer Brian Sicknick—the right-leaning editorial board at the Wall Street Journal, a Rupert Murdoch-owned newspaper, called for Congress to impeach and remove Trump if he declined to “take personal responsibility and resign.”
The stinging indictment by a newspaper Trump had read religiously for decades was more upsetting to him than the flood of administration officials springing for the exits, according to one senior administration official. That was the point Trump began seriously discussing with aides what more he could say to spare himself further humiliation. Kushner and others suggested a televised address from the Oval Office, but the president didn’t like that idea....
At around 7:30 that evening, Trump released a video through the White House, more straightforwardly conceding the election and asking “healing and reconciliation” for the nation. He never uttered Biden’s name....
JANUARY 8...
As White House aides trickled into work with their morning coffee, the president fired off a morning tweet from his restored Twitter account: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future.” But the rest of Washington was still grappling with the aftermath of the Capitol siege and debating whether another 12 days of Trump was just too much of a risk to the country.
The president watched the outrage spiral before him on television. Former Republican allies—ranging from Christie to Pennsylvania Sen. Pat Toomey—called for his removal or impeachment. House Speaker Nancy Pelosi was seeking assurance from the Pentagon that Trump couldn’t abruptly order a nuclear strike. Dozens of corporations announced a freeze on campaign donations to GOP lawmakers who had met Trump’s request to block certification of the election. There were reports Cabinet members were contemplating invoking the 25th Amendment to put Pence in charge....
Trump announced via Twitter that he would definitely not attend Biden’s inauguration...
Alaska Sen. Lisa Murkowski, a moderate member of the Senate GOP Conference, had called for Trump’s resignation hours earlier, and Pelosi was beginning to warm to the idea of a rapid no-frills impeachment.
“If the president does not leave office imminently and willingly,” Pelosi wrote in a letter to fellow Democrats, “the Congress will proceed with our action.”...
Around 8:30 p.m., @realdonaldtrump went dark on Twitter and the archive of some 55,000 tweets the president had sent during his time in office — statements that had ignited intraparty wars, alerted U.S. officials to major policy changes, blown up congressional negotiations and publicly informed staffers they had been fired — disappeared from the social media site. Trump’s worst fear had become a reality: He was permanently banned from his preferred communication platform....
The president raged at Big Tech and he railed at his aides — Why hadn’t they seen this coming? — as they hunted for an alternative platform where he could quickly rebuild his following....
“We can finally sleep in peace,” remarked one former Trump aide....
JANUARY 9....
Trump... hunker[ed] down at the White House...
Trump remained cloistered at the White House, pacing back and forth between the residence and the Oval Office, reading the New York Times (“House Prepares Article of Impeachment” was the banner headline) and watching television....
Some aides had quit in protest and others had already left for other jobs as the administration wound down. Hope Hicks, one of Trump’s closest advisers, hadn’t worked out of the White House in weeks and was scheduled to officially depart in just a few days....
White House counsel Pat Cipollone had led his defense during his first impeachment but Cipollone was considering resigning following the president’s efforts to overturn the election, particularly his pressure on Pence. As a result, Trump’s inner circle had shrunk to just a handful of loyalists who had been with him since the start — McEntee, Scavino, the director of social media, and senior policy adviser Stephen Miller, the architect of Trump’s contentious immigration policies....
“He has surrounded himself with people who only tell him what he wants to hear and it’s a dangerous place to have the president of the United States be in with 10 days to go,” a senior administration official said....
Meadows, who many blamed for feeding Trump’s belief that he won the election, was in and out of the office, trying to plan his post-White House life. Other staffers, who were obligated to keep on top of official business even though Trump had grown disinterested, tried to limit their time with him in the Oval Office to avoid hearing his endless harangues about the stolen election.
“I think people spent a lot less time with him to be honest,” a former senior administration official said.
‘I’m not sure a lot of people are calling him’
Trump spent the day watching TV. He had Fox News on... he made more calls than usual — not, as one former Trump aide said, “to more people” but rather, “the same people over and over again.”...
“I think he has more availability and he’s more anxious and wants to talk to people who are loyal and support him still.”...
“He’s getting on the phone, he’s calling people and you know he’s not doing the work of the presidency,” a Trump friend said.
There was one person Trump was not calling: his vice president. Four days after Trump had slammed Pence for his lack of courage, four days after Pence began receiving death threats, the president had yet to reach out....
But what was on Trump’s mind was the PGA's decision to cut ties with him — an embarrassing development the golf-obsessed president had awoken to that morning. Overnight, board members of the PGA had voted to cancel Trump’s Bedminster, N.J. golf club as the site for its 2022 championship. He was angrier about this loss of prestige than the riot....
To take his mind off the ballooning impact of the riot, Trump and his aides organized a series of private award ceremonies to keep him busy. On the day after the riot, he had gone ahead with a ceremony to bestow the Presidential Medal of Freedom on two former professional golfers. Now, he planned to give the same recognition to Ohio Rep. Jim Jordan, who had been one of the president’s fiercest defenders during the investigation into Russian election interference and who was one of 147 House Republicans to vote against certification of Biden’s 306-232 electoral college victory the previous week....
Hours after the event concluded, around 7 p.m., Trump finally summoned Pence to the Oval Office....
[T]he vice president awkwardly danced around the subject and focused instead on ways he could shift attention back to their policy achievements during the next nine days....
[T]he partnership was effectively over. Pence isn’t even expected to seek Trump’s endorsement if he launches a White House bid in 2024....
JANUARY 12...
Just after 10 a.m., moments after staffers were spotted carrying packing boxes into the White House, the president strode out of the Oval Office and into public view for the first time since the riot....
“It’s really a continuation of the greatest witch hunt in the history of politics,” he said of the looming impeachment. “It’s ridiculous. It’s absolutely ridiculous.”
Two minutes later, he boarded the helicopter, bound for a daylong trip to Alamo, Texas, on the Mexican border. He and Graham, who flew with him on Air Force One, had planned to tout the construction of 452 miles of a 30-foot steel wall...
In the air, Trump urged Graham to persuade other GOP senators to oppose impeachment...
On the way home, Trump made calls to senators, including Tim Scott, a Republican ally from South Carolina. He talked about election reform and the transition. Later that day, Scott came out against Trump’s removal....
It was almost as if he had lost his love of combat when he lost the social media whip he had long used to enforce loyalty...
Trump spent most of the day watching the House debate on TV from the White House residence and the private dining area off the Oval Office....
At 2 p.m., Trump released a one-paragraph statement that didn’t mention impeachment. “In light of reports of more demonstrations, I urge that there must be NO violence, NO lawbreaking and NO vandalism of any kind. That is not what I stand for, and it is not what America stands for. I call on ALL Americans to help ease tensions and calm tempers.”
The disconnect between the historic drama playing out in Congress and the make-believe reality of normal life inside the White House was never clearer than during an East Room ceremony that afternoon. As one member of Congress after another rose in the House to decry Trump’s grievously antidemocratic behavior, the president gave awards to country singers Toby Keith and Ricky Skaggs — both supporters of Trump — and former Associated Press photographer Nick Ut, whose iconic image of a crying Vietnamese girl fleeing naked from a napalm attack had stoked Americans’ disgust with the Vietnam War....
That evening, Trump’s aides, including political director Brian Jack, briefed Trump on the 10 Republicans, one by one, who had voted that afternoon for impeachment. The president focused his ire on Cheney and vowed to retaliate.
“He’s now keenly focused on those 10,” a White House official said.
In one of his final policy acts, Trump sent Congress a sweeping package of proposed spending cuts, including billions of dollars for a global health and vaccine distribution program involved in the Covid fight. There was no chance lawmakers would ever push through his plan, but it was perhaps the closest thing to official work Trump had attempted lately. Despite the daily boilerplate scheduling guidance from the communications staff — “President Trump will work from early in the morning until late in the evening. He will make many calls and have many meetings” — everyone at the White House knew he was fixated on the election and now impeachment.
“There was a feeling of a traffic jam and more and more initiatives that were piling up and that’s frustrating for everybody,” a former senior administration official said. “You still need the president’s signature for things requiring executive authority.”
Instead, Trump handed off some things to Pence. It was the vice president who traveled to FEMA headquarters for a briefing on inauguration security — his first public event since the Capitol riot....
Trump had expected to award the Presidential Medal of Freedom to Bill Belichick, but it was canceled after the New England Patriots head coach, a longtime friend of Trump’s, said he would not accept it. That left nothing official on Trump’s schedule for the day.
“The government’s continuing to operate and run, and the president would weigh in on substantive policy decisions, but luckily a large majority of those have already been done,” a senior administration official said.
But as problems persisted with statewide Covid-19 vaccine rollouts and the U.S. death count crept closer to 400,000, Trump didn’t appear to weigh in — publicly or privately. Nor did he seem interested when the Labor Department released new data showing the first net decline in U.S. employment since the spring and staggering job losses across the food and beverage and hospitality industries. One top economic official who continued to work out of the White House said it had been two weeks since he last saw the president....
JANUARY 15...
Trump was forced to spend much of the day going through the motions of saying goodbye to departing staffers, smiling in group photos with employees from a seemingly never-ending list of offices—intergovernmental affairs, management and budget, legislative affairs, social secretary.
Behind closed doors, Trump awarded the Legion of Merit (a rarely bestowed honor given to a foreign leader) to Mohammed VI, the king of Morocco. (The country’s ambassador accepted the award.) The king had recently agreed to resume diplomatic ties with Israel, helping to reshape the landscape of the Middle East and North Africa....
The White House was so uncharacteristically quiet after years of nonstop activity that the brief visit of one of Trumps’ biggest supporters, Mike Lindell, CEO of the pillow manufacturing company MyPillow Inc. (which offers $45 discounts when using the promo code “QAnon”) caused a stir.
Lindell had come to brief the president and Cipollone on material he had found on the internet — ”footprints of the machine fraud,” he called it — that showed that “Joe Biden lost. Seventy-nine million votes for Donald Trump. Sixty-eight million for Joe Biden.”...
That’s when photographers captured a close-up of his notes that appeared to suggest “martial law” might be necessary to save the country.
“Insurrection Act now as a result of the assault on the … martial law if necessary upon the first hint of any … ” his notes read.
JANUARY 16...
The “My Pillow Guy” on Friday was followed on Saturday by the guy once known as “My Rudy” when Trump met with his one-time personal attorney, Giuliani.
Giuliani told ABC News that he was working on Trump's defense for his impeachment trial...
Just days earlier, Trump had grown annoyed with Giuliani, refusing to take his calls or pay his bills....
JANUARY 17...
Inside the White House, the president and his closest advisers spent the day thinking about forgiveness.
Trump had long made pardons a signature performance of his presidency, doling them out to political allies and people nominated by celebrities. He liked that the Constitution gave him the exclusive power to grant them. And he was determined to use it fully before he left office.
He met Kushner and Ivanka Trump and Cipollone to review a list of pardon requests that have been coming in from friends and allies on behalf of themselves and others who have grown anxious....
Trump had issued two rounds of pre-Christmas pardons and commutations, including for three former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and four security contractors convicted for massacring Iraqi civilians in 2008. He wanted to issue one more batch — perhaps 100 or more —by Tuesday....
Trump had spent weeks considering giving preemptive pardons to as many as 20 close associates and family members, including his children...
JANUARY 18...
On his final Monday in office, he didn’t golf. He didn’t visit the MLK memorial. He worked to shore up his legacy.
Trump recorded a 20-minute video in the Blue Room of the White House to be released the next day, touting his accomplishments. “We did what we came here to do,” he said....
JANUARY 19...
He settled on departing the morning of Inauguration Day. He wanted to go before the actual ceremony so that he didn’t have to ask the new president to use the plane, and he wanted to be sure it would still be designated as Air Force One for the trip....
[S]taff went about making arrangements for a farewell that would resemble an official state visit — perhaps with a red carpet, color guard, military band and 21-gun salute. He wanted to do it at Joint Base Andrews in Maryland....
Somehow several banished employees were invited, including former top White House adviser John Bolton and Omarosa Manigault Newman, who both turned their relentless criticism of Trump into tell-all books. They suspected it was a sign the White House was desperate for people to attend. “He’s a disgrace,” said Manigault Newman, who said she received multiple invitations....
b. The parties’ positions on official-acts immunity
Guided by the foregoing principles, the court turns to the parties’ arguments. President Trump bears the burden of establishing that he is immune from suit. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1140 (D.C. Cir. 2015).
The complained-of actions of the President in these matters can be generally framed as falling into three categories: his pre–January 6th tweets, the January 6 Rally Speech, and his failure to promptly act once the Capitol was breached by rioters. President Trump argues that these acts fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, and (2) speaking on matters of public concern. Swalwell Trump Mot. at 8–11; Blassingame Trump Mot. 12; Reply in Supp. of Def. President Trump’s Mot. to Dismiss, ECF No. 43 [hereinafter Thompson Trump Reply], at 3–6. Across his various briefs, President Trump describes these functions in different ways. With respect to faithful execution of the laws, President Trump says that he “had an ever-present duty to ensure that the election laws were followed, including the certification process.” Thompson Trump Reply at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core of the executive branch’s duty to faithfully execute the law.” Id. (internal quotation marks and citation omitted). As to speaking on matters of public concern, the President argues that he “was engaged in discretionary action pursuant to his Constitutional duty to ensure that the laws were faithfully executed by petitioning Congress not to certify the electors from States with ongoing election challenges.” Blassingame Trump Mot. at 10–11. Elsewhere he contends that the speech and social media posts complained of by Plaintiffs all addressed matters of public concern and thus are “within the outer perimeter of the Presidential office.” Thompson Trump Reply at 5. “[A] political speech by the President is not at the ‘outer perimeter’ of his duties,” he says; rather, “it is at dead center.” Swalwell Trump Mot. at 9.
The court finds that President Trump’s Take Care Clause argument is misleading and wrong as a matter of law, and that his contention with respect to speech of public concern is too simplistic.
"Take Care that the Laws be faithfully executed” means "The President Makes the Laws."
Article II, Section 3 vests in the President the authority to “take Care that the Laws be faithfully executed.” Those are “sweeping words,” Myers v. United States, 272 U.S. 52, 122 (1926), but they do not confer limitless presidential authority or the authority to encroach on the powers vested in the co-equal branches, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–88 (1952). Presidential authority remains constrained by the Constitution and the laws that Congress enacts. See id. at 587 (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”); id. at 588 (“The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President.”).
President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the President.11 The Constitution provides that States are to select Electors who will cast votes for President and Vice President, and the Electors transmit a tally of those votes to the President of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the presence of the Senate and House of Representatives” shall “open all the certificates and the votes shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.
The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details not addressed in the Constitution. It, too, prescribes no role for a sitting President. A Joint Session of the Senate and the House of Representatives must meet “at the hour of 1 o’clock in the afternoon” on “the sixth day of January succeeding every meeting of the electors.” 3 U.S.C. § 15. The President of the Senate, as the presiding officer, opens the certificates of the electoral votes and hands them to tellers appointed by each House, who make a list of the votes. Id. When announcing each certificate, the President of the Senate calls for objections, which if made must be in writing and signed by one Senator and one member of the House of Representatives. Id. Thereafter, the Senate and the House withdraw to their respective chambers to consider each objection, and “each Senator and Representative may speak to such objection or question five minutes, and not more than once[.]” Id. § 17. The presiding officer must cut the debate off after two hours. Id. He also has the “power to preserve order” during the session. Id. § 18. The Act even details where the presiding officer, the Speaker, the Senators, the Representatives, the tellers, and others are to sit in the chamber. Id. § 16. And it commands that the session “not be dissolved until the count of electoral votes shall be completed and the result declared.” Id. As this summary demonstrates, a sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College. So, perhaps it is not surprising that President Trump does not identify any law relating to the Certification that he was purportedly executing through his tweets and the January 6 Rally Speech.
Nor does he identify any authority that would support his assertion that merely exhorting non–Executive Branch officials to act in a certain way is a responsibility within the scope of the Take Care Clause. Scholars have emphasized that the Take Care Clause is written in the passive voice (“take Care that the Laws be faithfully executed”). They have interpreted that construction to mean that the Framers envisioned not that the President personally would implement the laws but that their actual execution would be carried out by others subject to the President’s direction and supervision. See, e.g., Andrew Kent et al., Faithful Execution and Article II, 132 HARV. L. REV. 2111, 2126 (2019); Gillian E. Metzger, The Constitutional Duty to Supervise, 124 YALE L.J. 1836, 1875 (2015). The President’s Take Care Clause duty therefore does not extend to government officials over whom he has no power or control. Here, the Vice President, acting as President of the Senate, and members of Congress had constitutionally and statutorily prescribed duties to carry out the Certification. Their actions are those of a co-equal branch, not subject to Executive Branch control. President Trump’s advocacy of the scope of their duties and how they should be performed therefore falls outside even the expansive Take Care Clause.12
In summoning authority in aid of this argument, President Trump leaves out critical context. President Trump relies on a law review note for the general proposition that “enforcing election laws . . . [strikes] at the core of the executive branch’s duty to faithfully execute the law.” Thompson Trump Reply at 3 (quoting Alton L. Lightsey, Note, Constitutional Law: The Independent Counsel and Supreme Court’s Separation of Powers Jurisprudence, 40 U. FLA. L. REV. 563, 573 (1988)). What President Trump omits from that quote, however, makes his citation grossly misleading. The full quote reads: “However, enforcing election laws through litigation [strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore belong solely to the executive.” Lightsey, supra, at 573 (emphasis added). Including “through litigation” completely changes the meaning of the sentence. The President can enforce election laws through litigation initiated by the Department of Justice or the Federal Election Commission, agencies over which he has appointment authority. The case the Lightsey note cites, Buckley v. Valeo, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” 424 U.S. 1, 138 (1976). This case, of course, does not involve litigation to enforce federal election laws, and so the President’s reliance on the Lightsey note is inapt.
ii. Speech on matters of public concern
"A speech by the President, [inciting an insurrection] is the type of activity normal and customary to the presidency."
The court turns next to President Trump’s assertion that his alleged actions all involve speech on matters of public concern and therefore are well within the President’s duties. As he puts it: “It is enough that the nature of the activity, a speech by the President, is the type of activity normal and customary to the presidency. Indeed, it was not at the outer perimeter of the President’s duties—it was dead center.” Thompson Trump Reply at 2.
The court agrees with President Trump in two respects. First, speech is unquestionably a critical function of the presidency. “The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.” Trump v. Hawaii, 138 S. Ct. 2392, 2417–18 (2018); see also Columbia Broad. Sys., Inc. v. FCC, 454 F.2d 1018, 1020 (D.C. Cir. 1971) (“The President’s extensive use of the media cannot, of course, be faulted, for there can be no doubt that in the distillation of an informed public opinion such appearances play a very basic role.”). Second, his pre–January 6th tweets and the January 6 Rally Speech addressed matters of public concern: the outcome of the 2020 Presidential Election and election integrity. Whatever one thinks of the President’s views on those subjects, they plainly were matters of public concern. See Snyder v. Phelps, 562 U.S. 443, 453 (2011) (“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” (internal quotation marks and citations omitted)); Rankin v. McPherson, 483 U.S. 378, 387 (1987) (stating the arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern”).
But to say that speaking on matters of public concern is a function of the presidency does not answer the question at hand: Were President Trump’s words in this case uttered in performance of official acts, or were his words expressed in some other, unofficial capacity? The President’s proposed test—that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit—goes too far. It mirrors what the Supreme Court has said cannot be the basis for absolute immunity: “[T]o construct an immunity from suit for unofficial acts grounded purely in the identity of [the President’s] office is unsupported by precedent.” Clinton, 520 U.S. at 695. And the Supreme Court has recognized different capacities in which the person occupying the Office of the President can act: “Presidents and other officials face a variety of demands on their time, . . . some private, some political, and some as a result of official duty.” Id. at 705 n.40.13 Thus, to say that the President spoke on a matter of public concern does not dispositively answer the question of whether he enjoys absolute immunity for such speech.
Consider some examples. At a rally promoting his reelection, an incumbent President touts his policy accomplishments and makes promises about a second term, but during his speech he instructs members of the crowd to “punch” a protester “in the face right now.” Or, take a President who speaks at a party fundraising event before a group of high-dollar donors, where he not only discusses pending legislation but also falsely and with malice accuses a political opponent who is blocking the legislation of running a child-trafficking operation. Or, consider a President who appears at a campaign event for a candidate of his party who is running for Congress, and during his remarks touts the candidate because his election will help advance his agenda, but also calls on the crowd to destroy property as a sign of support. In each of these scenarios, the conduct of the President comes in the context of words uttered on matters of public concern, but it is doubtful that anyone would consider the President immune from tort liability for harm resulting from his speech. To be sure, these scenarios may seem far-fetched, but they illustrate an important point: blanket immunity cannot shield a President from suit merely because his words touch on matters of public concern. The context in which those words are spoken and what is said matter.
For their part, Plaintiffs urge the court to reject President Trump’s claim of absolute immunity for two reasons: first, because they “allege that he was acting solely in his personal capacity as a candidate,” and second, because he “engaged in serious misconduct that obstructed a co-equal branch of government, removing his actions from the outer bounds of permissible presidential conduct.” Bass Pls.’ Omnibus Mem. of Law in Opp’n to Defs.’ Mots. to Dismiss, ECF No. 29 [hereinafter Thompson Pls.’ Opp’n], at 65 (internal quotation marks omitted); see also Pl. Swalwell’s Combined Opp’n to Defs.’ Mots. to Dismiss, ECF No. 23 [hereinafter Swalwell Opp’n], at 11 (arguing that “Trump conflates his role as a candidate with his role as President”); Blassingame Pls.’ Opp’n to Def.’s Mot. to Dismiss, ECF No. 21 [hereinafter Blassingame Pls.’ Opp’n], at 6 (“Article II does not provide Trump with immunity for inciting an insurrection.”). These formulations present their own set of problems.
For one, the line between President and candidate will not always be clear. A first-term President is, in a sense, always a candidate for office. It is not the least bit unusual for first-term Presidents to comment on public policy or foreign affairs at campaign events, or, in this day, to announce policy changes by tweet during an election year. Plaintiffs offer no principled constitutional basis on which to discern how to categorize such acts.14
As for their contention that immunity cannot extend to a President that incites a mob to attack a co-equal branch of government, while having surface appeal, it too runs into an analytical problem. If what Plaintiffs mean to say is that an alleged violation of law by a President cannot fall within the outer perimeter of his official duties, the Supreme Court rejected that very argument in Fitzgerald. Such a “construction,” the Court said, “would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect.” Fitzgerald, 457 U.S. at 756–57. Plaintiffs’ position also runs up against the Court’s admonition that a test for immunity that depends upon “a President’s motives” “could be highly intrusive.” Id. at 756. Predicating an immunity determination on whether President Trump intended to cause a riot arguably would require just such an inquiry.15
iii. The President’s challenged acts
Rather than apply the parties’ proffered categorial rules to the immunity question, the court thinks the better course is to evaluate the defense on the specific facts alleged and, based on those facts, determine whether President Trump’s words were spoken in furtherance of a presidential function. That is the approach that the D.C. Circuit took in Banneker Ventures, LLC v. Graham, a case in which then–Board Member of the Washington Metropolitan Area Transit Authority (“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly interfering with a developer’s ultimately unsuccessful project negotiations with WMATA. 798 F.3d 1119, 1139 (D.C. Cir. 2015). The court viewed Graham’s immunity defense, in part, through the lens of federal common law and asked whether Graham’s alleged conduct fell within the scope of his official duties. Id. at 1140. It applied the “within the outer perimeter of [an official’s] line of duty” test as demarcating the line between Graham’s official and unofficial acts. Id. (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)). The trial court had found that all of Graham’s alleged tortious acts were immune, but the D.C. Circuit criticized the trial court for “conceiv[ing] of the inquiry at too high a level” and for not “analyzing each challenged act.” Id. at 1141; id. (“At a high enough level of generality, almost any act that has any relationship to an overarching duty . . . will be immunized.”). “The appropriate focus,” the court wrote, “is on the relationship between ‘the act complained of’ and the corresponding ‘matters committed by law to [the official’s] control or supervision.’” Id. (quoting Barr, 360 U.S. at 573). The court noted that “[o]ne way that an official acts manifestly beyond his authority is through the use of ‘manifestly excessive means,’ even if he does so in the conduct of duties otherwise within his official purview.” Id. at 1141 (citation omitted). The court emphasized that the burden of establishing immunity rests on the official claiming it. Id. at 1140.
Concededly, the scope-of-duty evaluation undertaken in Graham was quite rigorous, and such rigor arguably should not apply here with equal force. This case involves the President of the United States, not a board member of a public agency. (Barr, on which Graham relied, involved the acting director of a federal agency.) There are separation-of-powers considerations at play here that were not present in Graham. Nevertheless, the court believes that Graham’s basic approach applies; that is, in evaluating a presidential claim of absolute immunity the court must consider the relationship of the challenged conduct to the claimed corresponding function of the President.
In undertaking this analysis, the court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency. Plaintiffs’ allegations against President Trump accuse him of doing just that: devoting his last weeks in office to continuing his term as President of the United States through the Electoral College vote and certification process, even though he did not prevail in the general election.
Among his first alleged acts following the general election were tweets criticizing state officials for not doing enough to enable him to prevail in their states. Swalwell Compl. ¶ 36 (criticizing the governors of Arizona and Georgia and saying, “If they were with us, we would have already won both”). The President also directly contacted local election officials and state legislators in Michigan, Pennsylvania, and Georgia to allegedly pressure them to overturn their election results. Id. ¶¶ 37–54. These efforts included urging local Michigan officials to reverse their certification of election results, id. ¶ 38, and saying to Georgia’s Secretary of State, “I just want to find 11,780 votes, which is one more than we have,” id. ¶ 53. He would later call that Georgia state official an “enemy of the people.” Thompson Compl. ¶ 47. President Trump also filed multiple lawsuits in jurisdictions in which he did not prevail. Id. ¶ 36. Those suits plainly were directed at securing incumbency. They, like his tweets and direct outreach to state election officials, were not official acts.
The same is true with respect to his tweets regarding rallies that occurred in Washington, D.C., in November and December 2020. Those tweets did not advocate any policy changes or legislation. Rather, they expressly stated or implied that the rallies would help him remain President. Blassingame Compl. ¶¶ 23, 25, 26 (tweeted photo of rally captioned “We will WIN!”); id. ¶ 27 (tweet stating “WE HAVE JUST BEGUN TO FIGHT!!!”).
That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”
Nor did planning for the January 6 Rally involve official duties. Those acts took place largely through President Trump’s campaign organization. In mid-December, the campaign used campaign funds to pay Event Strategies, Inc., the company that would secure the permit for the January 6 Rally. Blassingame Compl. ¶ 31. The campaign’s Director of Finance was listed as the “VIP Lead” for the rally, Swalwell Compl. ¶ 97, and a “top Trump campaign fundraiser oversaw the logistics, budgeting, funding and messaging” for the rally, Thompson Compl. ¶ 68. The Trump campaign and various related entities paid more than $3.5 million to assist in organizing. Blassingame Compl. ¶ 39. President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”). Organizing the January 6 Rally involved no presidential function.
And then there is the January 6 Rally Speech itself. The court has considered it in its entirety, analyzing it beyond the words quoted in the Complaints. The court will go into greater detail about the Speech later in this opinion. For present purposes it suffices to say that while the Speech did touch on matters of public concern (namely President Trump’s pledge to work on election laws in a second term), the main thrust of the Speech was not focused on policy or legislation. It was to complain about perceived cases of election fraud that led President-elect Biden to win more votes in closely contested states, to urge members of Congress to object to certain state certifications, and to exhort the Vice President to return those certifications to those states to be recertified. Much like the tweets leading up to the January 6 Rally, the words spoken by the President—without delving into the motivation behind them—reflect an electoral purpose, not speech in furtherance of any official duty.
To deny a President immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity. Subjecting a president to potential liability for the acts described in the Complaints will not “diver[t] . . . the President’s attention during the decisionmaking process” with “needless worry as to the possibility of damages actions stemming from any particular official decision.” Clinton, 520 U.S. at 694 n.19. After all, the President’s actions here do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch. They entirely concern his efforts to remain in office for a second term. These are unofficial acts, so the separation-of-powers concerns that justify the President’s broad immunity are not present here. “If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct.” Id. at 705. The court therefore may “determine the legality” of President Trump’s acts that are alleged to have given rise to Plaintiffs’ injuries on January 6th.
iv. Section 1986 claim
"Catch 22: Neither the performance nor failure to perform a Presidential duty can expose the President to liability, whether the duty is performed well, badly, or not at all. That is because all duties to act have to arise from within the scope of Presidential duty, that is subject to absolute immunity."
The foregoing comes with one important caveat: President Trump is immune as to Swalwell’s failure-to-act claim under § 1986. That provision states:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned [in section 1985 of this title], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented.
42 U.S.C. § 1986. The statutory provision is unique. It requires persons with knowledge of a conspiracy proscribed in § 1985 and with the means to prevent the conspiracy to take affirmative actions to do so. A person who refuses or neglects to exercise such power is liable for damages to those persons whose injuries could have been prevented.
Swalwell alone asserts a claim under § 1986 against President Trump. He alleges that President Trump knew about the alleged § 1985 conspiracy, had the power to prevent it, and failed to exercise “reasonable diligence” to avoid harm. Specifically, he asserts that “when it was clear that rioters had stormed the Capitol, and Congress was unable to certify the results of the Electoral College vote, [President Trump] had the power to stop the rioters but refused and, instead, encouraged them.” Swalwell Compl. ¶ 190. That allegation, it would seem, makes out a § 1986 claim against the President.
But the President cannot be held liable for his failure to exercise his presidential powers, at least under § 1986. Just as he is immune for acts that fall within the outer perimeter of his official responsibilities, so too must he be immune for alleged failures to exercise that official responsibility. Were it otherwise, Presidents routinely would be subject to suit for not doing more or for not acting at all. Absolute immunity would be gutted if a plaintiff could avoid it simply by alleging a failure to exercise presidential power. The court therefore dismisses Swalwell’s § 1986 claim.16[???!!!]
"Just as a President is not immune for acts that fall outside the outer perimeter of his official responsibilities, so too must he be not immune for alleged failures to exercise that official responsibility."
After the D.C. Circuit declined to dismiss the case on the ground of absolute presidential immunity, the Supreme Court took up the question of the “scope of immunity available to a President of the United States.” Id. at 741.
The Court held that President Nixon enjoyed absolute immunity from the plaintiff’s suit: “[W]e hold that petitioner, as former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.”... Central to the Court’s determination was the “unique position in the constitutional scheme” that the President occupies. The Court observed that, “as the chief constitutional officer of the Executive Branch,” the President is “entrusted with supervisory and policy responsibilities of the utmost discretion and sensitivity.” ... For a President, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”... “there exists the greatest public interest in providing an official the maximum ability to deal fearlessly and impartially with the duties of his office.”... “Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”...
“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”...
Fitzgerald thus established a scope of presidential immunity for civil money damages that is unquestionably capacious, though not categorical. The Supreme Court contemplated that, at least, there might be some actions by a President that would fall outside the outer perimeter of his official responsibilities and expose him to a civil suit.
-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta
In deciding whether Trump's culpable inaction falls within or outside of the scope of Presidential duties, first, answer the question, "What would you have him do in order to NOT be derelict in his duties?"
The answer would be, "Trump would direct the mob to disperse and stop attacking the Capitol."
In directing the mob to disperse, Trump would not be exercising any Presidential power of office. Rather, he would be exercising sway over a mob he incited for the personal purpose of unlawfully perpetuating his stay in office.
An entirely different position would be presented if a gang of rowdy Secret Service agents were rampaging through Georgetown while Trump sat in his limousine and observed them engaging in mayhem. Since he could exercise his official authority to stop the Secret Service rampage, failure to do so would be a dereliction of duty, and under the Judge's analysis therefore immune from liability. Trump can sway a mob in or out of office; accordingly, there is no need to preserve his non-existent Presidential prerogative to put the mob back on the chain by immunizing, and therefore rewarding, his failure to do so.
Immunizing failure to act as distinct from acting wrongfully, is as ridiculous as saying it's not an assault to hit someone with your left hand, only with your right.
3. The Political Question Doctrine
President Trump raises a related jurisdictional argument: these cases present a nonjusticiable political question. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (stating that, when a case involves a political question, “a court lacks the authority to decide the dispute”). The political question doctrine removes from the purview of the courts cases that “revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). The doctrine bars a court’s “jurisdiction only when the Constitution textually commits ‘the issue’ to be adjudicated in the case ‘to a coordinate political department,’ or when there is ‘a lack of judicially discoverable and manageable standards for resolving it.’” Hourani v. Mirtchev, 796 F.3d 1, 8 (D.C. Cir. 2015) (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)). President Trump’s effort to morph this case into one presenting a political question fails.
For starters, the court already has held that the President’s actions leading up to the riot at the Capitol building were not undertaken in his official capacity. To that extent, these cases implicate no policy choice or value determination committed to the Executive Branch. That holding alone takes this case outside of the political question doctrine.
But even if the court uses the doctrine’s analytical framework, President Trump fares no better. He first argues that because this suit is “based upon the words or action of the President,” an adjudication “would improperly regulate the executive department, in violation of Article II, § 1 which requires that the executive power be exercised solely by the President.” Thompson Trump Mot. at 11–12. If by that argument the President means that any suit touching on presidential speech gives rise to a political question, that cannot be, because the Constitution says nothing about a President’s speech. Moreover, the Supreme Court has never held that just because a case involves review of a President’s claimed exercise of his general Article II executive powers it is nonjusticiable. That is not the law. See, e.g., Youngstown Sheet & Tube, 343 U.S. at 587 (rejecting claimed presidential authority to seize steel mills based on Article II’s grant of Executive power in the President).
The President next argues that to adjudicate these cases would force the court “to make a value determination about what is or is not proper for the President to say during a political speech when advocating for governmental action.” Thompson Trump Mot. at 12. It is true that, in a sense, an adjudication here might involve a “judgment” of the President’s speech, “[ b]ut that has never been enough, by itself, to trigger the political question doctrine’s jurisdictional bar.” Cf. Hourani, 796 F.3d at 8 (stating that the fact that a judgment might implicate the acts of a foreign nation, by itself, does not create a nonjusticiable political question). A suit against the President often has political overtones, but “courts cannot avoid their responsibility merely ‘because the issues have political implications.’” Zivotofsky, 566 U.S. at 196 (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)).
President Trump also tries a different approach. He suggests that because he was impeached by the House but acquitted by the Senate for his actions relating to January 6th, a judicial inquiry of his conduct raises a political question because it might “displace the Senate as the final arbiter on the subject of impeachment, showing disrespect for a co-equal branch.” Blassingame Trump Mot. at 14. But, of course, this court is in no sense conducting a review of the impeachment proceedings; nor could it do so. See Nixon, 506 U.S. at 230–31 (holding that a court lacks the constitutional authority to review the Senate’s impeachment trial procedures). Its concern is with the President’s potential civil liability for the events of January 6th. The mere fact that these cases and the impeachment proceedings pertain to the same subject matter does not implicate the political question doctrine.
4. The Impeachment Judgment Clause
President Trump also seeks dismissal based upon his impeachment proceedings in a different way: he contends that the Impeachment Judgment Clause forecloses civil liability of someone who is not convicted following an impeachment trial. The court understands this argument to challenge its subject matter jurisdiction. The Impeachment Judgment Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Const. art. I, § 3, cl. 7. According to the President, because the Impeachment Judgment Clause speaks only to further action against a “Party convicted,” and is silent as to a person not convicted, it follows that the Clause “forbids further litigation of the same claims by those acquitted by the Senate.” Thompson Trump Mot. at 13.
In support of this reading, the President invokes the expressio unius est exclusio alterius canon of statutory interpretation, which means that “expressing one item of [an] associated group or series excludes another left unmentioned.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002) (alteration in original) (citation omitted); Thompson Trump Mot. at 13. But that canon does not apply. For one, the President cites no case in which the Supreme Court has used that canon of statutory construction to directly interpret a clause of the Constitution, and the court has struggled to find one. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (relying on one Framer’s commentary to observe that “the Framers were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses”); Salamanca Twp. v. Wilson, 109 U.S. 627, 628 (1883) (applying canon to interpretation of state constitution); Pine Grove Twp. v. Talcott, 86 U.S. 666, 675 (1873) (same). Even if the canon were to apply, “it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (citation omitted); see also Echazabal, 536 U.S. at 81 (“The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which [is] abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded.”). The Impeachment Judgment Clause does not contain an “associated group or series” or “two or more terms or things”; it only addresses the non-preclusive effect of a conviction following impeachment. The Supreme Court has said that “[w]e do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart, 537 U.S. at 168. President Trump offers no evidence to support a conclusion that the Framers intended for the absence of any reference to an acquitted officer following impeachment to mean that such official could not be subject to judicial process.
In fact, the historical evidence is to the contrary. An Office of Legal Counsel (OLC) Opinion from 2000, which the President himself cites, provides a helpful summary. See Whether a Former President May Be Indicted and Tried for the Same Offense for Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 113 (2000). That opinion concludes, “We are unaware of any evidence suggesting that the framers and ratifiers of the Constitution chose the phrase ‘the party convicted’ with a negative implication in mind.” Id. at 120.
Indeed, if the Impeachment Judgment Clause were intended to imply that acquittal by the Senate would block criminal prosecution for the same offenses, one would expect that at least one participant in the process of framing and ratifying the Constitution would have pointed out this negative implication. We are aware of none.
Id. at 121–24. The court finds the OLC’s exhaustive historical recitation of the origins of the Impeachment Disqualification Clause to be persuasive. The court therefore draws no negative implication from the words of the Impeachment Judgment Clause that would bar civil liability of a President acquitted following impeachment.17
5. Res Judicata and Collateral Estoppel
President Trump attempts to make one last use of his impeachment proceedings: he contends that his acquittal bars litigation of the present claims on the grounds of res judicata and collateral estoppel. Thompson Trump Mot. at 13–14. He devotes scant attention to this argument in Thompson and Swalwell—largely one conclusory paragraph in each motion, id. at 14; Swalwell Trump Mot. at 14–15—but devotes more attention to it in Blassingame, Blassingame Trump Mot. at 14–18. The court addresses it as if fully raised in all three cases.
The doctrine of res judicata, also known as claim preclusion, provides that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980).
Under the doctrine of res judicata . . . a subsequent lawsuit will be barred if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.
Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). The related doctrine of collateral estoppel, or issue preclusion, provides that “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen, 449 U.S. at 94.
[C]ollateral estoppel bars successive litigation of an issue of fact or law when “(1) the issue is actually litigated; (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; and (4) under circumstances where the determination was essential to the judgment, and not merely dictum.”.
Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d 784, 794 (D.C. Cir. 2019) (citation omitted).
Applying these preclusion doctrines strikes the court as more complicated that it might seem at first blush. Plaintiffs, for instance, argue that the President’s Senate impeachment trial is not a prior “litigation” because the term “litigation” is defined to mean the resolution of disputes in a court of law. See Thompson Pls.’ Opp’n at 73. But the Supreme Court has recognized that preclusion principles can bind an Article III court based on a final judgment from an administrative agency acting in a judicial capacity. See B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148 (2015) (“Both this Court’s cases and the Restatement make clear that issue preclusion is not limited to those situations in which the same issue is before two courts.”). And, there is a more than colorable argument to be made that the Senate acts in a judicial capacity when “try[ing]” an official on an Article of Impeachment. See, e.g., In re Comm. on the Judiciary, U.S. House of Representatives, 951 F.3d 589, 596 (D.C. Cir. 2020) (“The constitutional text confirms that a Senate impeachment trial is a judicial proceeding.”), vacated and remanded sub nom. Dep’t of Just. v. House Comm. on the Judiciary, 142 S. Ct. 46 (2021). Plaintiffs also argue that the “claims” here are different because they rest on federal and District of Columbia law, as opposed to the sole charge of “Incitement of Insurrection” lodged against the President by the House. See Thompson Pls.’ Opp’n at 73; Blassingame Pls.’ Opp’n at 19. But Plaintiffs read the “same claim” element too narrowly, because “[w]hether two cases implicate the same cause of action turns on whether they share the same ‘nucleus of facts.’” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (citation omitted). The impeachment trial and this case clearly do.
Still, the court thinks that neither doctrine applies for several reasons. First, the text of the Impeachment Judgment Clause does not support their application. As discussed, that Clause expressly contemplates that a person impeached and convicted could face a criminal trial. See Nixon, 506 U.S. at 234 (“[T]he Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses—the impeachment trial and a separate criminal trial.”). The court also has concluded that neither the text nor the history of the Clause forecloses a subsequent proceeding, criminal or civil, for a person acquitted following impeachment. See supra pp. 44–46. If that is correct, it would be an odd result to then say that the acquitted individual could use the non-conviction by the Senate to have preclusive effect, which would thwart any second proceeding. To accept the President’s application of res judicata and collateral estoppel here would add an implicit preclusion bar to the Impeachment Judgment Clause where there is none.
Second, although it is not a settled question, the court doubts that any Plaintiff is in privity with the House of Representatives if one deems the House as the opposing party in an impeachment trial. The Blassingame Plaintiffs certainly are not in privity with members of the House. Swalwell and the Bass Plaintiffs are members of the House, but in voting for the Article of Impeachment and, in Swalwell’s case, prosecuting it, those Plaintiffs were acting in their legislative capacities as representatives of their constituents. The Supreme Court has long recognized that the law treats members of Congress differently depending on the capacity in which they are acting. See, e.g., Raines, 521 U.S. at 820–21 (distinguishing between personal and institutional injuries for purposes of a legislator’s standing); United States v. Brewster, 408 U.S. 501, 507 (1972) (“The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress . . . .”). Here, they seek relief not as legislators but for injuries they suffered personally.
Third, applying preclusion principles here would require the court to assess the adequacy of the Senate proceedings, an inquiry that is nonjusticiable. See Nixon, 506 U.S. at 229–30, 237–38 (declining to decide whether the authority conferred on the Senate “to try all Impeachments” precluded certain Senate impeachment procedures). For instance, assessing whether Plaintiffs here had “a full and fair opportunity for litigation” for purposes of collateral estoppel would require the court to evaluate the adequacy of the Senate procedures used during the President’s impeachment trial. See Restatement (Second) of Judgments § 28(3) (Am. L. Inst. 1982) (stating that issue preclusion may not apply where “differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them”). This the court cannot do.
Finally, it is impossible to discern whether there was a “final, valid judgment on the merits” for purposes of res judicata, Smalls, 471 F.3d at 192, and what issues of fact or law the Senate deemed “necessary to its judgment” for purposes of collateral estoppel, Allen, 449 U.S. at 94. The Senate made no written findings, and individual Senators were not required to explain the reason for their vote for acquittal. In fact, if the court looks beyond the pleadings, several Senators, including Senate Minority Leader Mitch McConnell, publicly stated that they voted to acquit because the Senate lacked jurisdiction to punish a former President. See Swalwell Opp’n at 36. An acquittal on jurisdictional grounds arguably does not constitute a “judgment on the merits” for purposes of res judicata. Cf. Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C. Cir. 1999) (stating that “dismissals for lack of jurisdiction are not decisions on the merits and therefore have no res judicata effect on subsequent attempts to bring suit in a court of competent jurisdiction”). Nor would such an acquittal have any bearing on this court’s jurisdiction for purposes of collateral estoppel.
The court therefore holds that neither res judicata nor collateral estoppel bars these suits or precludes litigation of any issue or fact.
B. Failure to State a § 1985(1) Claim
Having concluded that all claims against Defendants, except one (Swalwell’s § 1986 claim), are justiciable, the court now turns to the question of whether Plaintiffs have stated a claim under § 1985(1). All Defendants argue that Plaintiffs have not. Their arguments are as follows: (1) Swalwell and the Bass Plaintiffs lack statutory standing to bring suit under § 1985(1); (2) Swalwell and the Bass Plaintiffs are not “covered federal officials” under § 1985(1);18 (3) no Plaintiff can state a claim because members of Congress were not discharging a “duty” on January 6th; and (4) Plaintiffs have failed to allege a plausible conspiracy among Defendants and others. The court rejects the first three arguments outright. As to the fourth, the court finds that Plaintiffs have pleaded a plausible § 1985(1) conspiracy against President Trump, the Oath Keepers, and Tarrio, but not Trump Jr. and Giuliani.
Inquiry into a plaintiff’s statutory standing asks whether the plaintiff “has a cause of action under the statute.” See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 & n.4 (2014). That question requires a court “to determine the meaning of the congressionally enacted provision creating a cause of action.” Id. at 128. In doing so, the court “appl[ies] traditional principles of statutory interpretation.” Id. The ultimate question is not whether in the court’s “judgment Congress should have authorized [the plaintiff’s] suit, but whether Congress in fact did so.” Id.
Section 1985 authorizes a “party” that is “injured in his person or property” to bring suit to recover damages for such injury against any “one or more of the conspirators” of a conspiracy proscribed by § 1985(1). 42 U.S.C. § 1985(3). No one makes the argument that such broad text might permit a suit by anyone who can satisfy the requirements of Article III, and likely for good reason: The Supreme Court in Lexmark rejected such an expansive reading of the remedial provision of the Lanham Act, which authorizes suit by “‘any person who believes that he or she is likely to be damaged’ by a defendant’s false advertising.” Lexmark, 572 U.S. at 129 (quoting 15 U.S.C. § 1125(a)). Instead, the court relied on “two relevant background principles”: the “zone of interests and proximate causality.” Id. at 129. Applying those principles, the Court held, “supplies the relevant limits on who may sue.” Id. at 134. In this case, there can be no genuine dispute at this stage that Defendants’ alleged acts were the proximate cause of Plaintiffs’ claimed injuries, and so the court does not dwell on that requirement. The court focuses on the zone of interests.
The Supreme Court has “presume[d]” that “a statutory cause of action extends only to plaintiffs whose interests ‘fall within the zone of interests protected by the law invoked.’” Id. at 129 (citation omitted). Though originally formulated in the context of challenges under the Administrative Procedure Act, the Court has “made clear” that the zone-of-interests analysis “applies to all statutorily created causes of action.” Id. A court should look to “the interests protected” by the statute to determine whether a plaintiff comes with its zone of interests. Id. at 131.
The interests protected by § 1985(1) are decidedly broad. As the Seventh Circuit observed in Stern v U.S. Gypsum:
[W]e think it important to note here that Congress, in enacting what became § 1985(1), did not fashion a narrow and limited remedy applicable only to the southern states in 1871. The outrageous conditions there at that time were, no doubt, what induced Congress to act, but it chose to do so with a statute cast in general language of broad applicability and unlimited duration.
547 F.2d at 1335 (citations omitted). The court also noted that the Supreme Court had accorded the Reconstruction-Era civil rights statutes “a sweep as broad as [their] language.” Id. at 1336 (alteration in original) (quoting United States v. Price, 383 U.S. 787, 801 (1966)). Viewed in this way, the Seventh Circuit had little trouble concluding that § 1985(1)’s protections extended to an Internal Revenue Service Agent who claimed the defendants had conspired to defame and discredit him to his superiors. Id. at 1335–36. It strains credulity to think that Reconstruction-Era members of Congress meant to protect low-level Executive Branch employees but not themselves.
The statutory text supports this conclusion. Section 1985(1) makes unlawful conspiracies whose object is a person who occupies “any office, trust, or place of confidence under the United States” or is “any officer of the United States.” 42 U.S.C. § 1985(1). The words used by Congress here are decidedly expansive and, on their face, would seem to encompass members of Congress. President Trump nevertheless insists that these words must be read in tandem with their usage in the Constitution. President Trump thus maintains that the word “officer” includes only persons “appoint[ed] by the President, or of one of the courts of justice[,] or heads of departments authorized by law to make such an appointment.” Thompson Trump Mot. at 16–17 (quoting United States v. Mouat, 124 U.S. 303, 307 (1888)). Similarly, he contends that the phrase “any office, trust, or place of confidence” must be read consistent with Article I, § 1, which states that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States,” shall serve as an Elector. Thompson Trump Mot. at 16. Because the Constitution distinguishes between members of Congress and a “Person holding an Office of Trust or Profit under the United States,” he asserts, the Bass Plaintiffs and Swalwell do not hold “any office, trust, or place of confidence” for purposes of § 1985(1). Id. at 17–18. He also focuses on the modifier “under the United States” and points to Article I, § 6, which disqualifies “a Member of either House during his Continuance in Office” from “holding any Office under the United States.” Id. at 17. So, in short, President Trump argues that because the Bass Plaintiffs and Swalwell are not identified as among those protected by § 1985(1), they cannot bring a claim under it.
The court doubts that Congress intended to use the Constitution as a dictionary for interpreting the words found in § 1985(1). President Trump points to no case or legislative history to support his preferred reading. To the contrary, cases like Stern have read the scope of § 1985(1) broadly, consistent with its words. Cf. 1 Op. O.L.C. 274, 276 (1977) (opining, in the context of interpreting § 1985(1)’s identically worded, companion criminal statute, 28 U.S.C. § 372, that “[t]he broad purpose of protecting the Federal presence as fully as possible therefore supports a broad, rather than a narrow, reading of the word ‘office’”). This court does the same.
Moreover, the Supreme Court has not reflexively imported constitutional meanings into federal statutes, as President Trump urges the court to do. Lamar v. United States, 240 U.S. 60 (1916), is illustrative. There, a defendant who presented himself as a member of the House of Representatives was convicted of impersonating “an officer of the United States.” Lamar, 240 U.S. at 64. On appeal, the defendant asserted, much like President Trump does here, “that the interpretation of the Constitution was involved in the decision that a Congressman is an officer of the United States.” Id. The Court soundly rejected that argument, saying “[a]s to the construction of the Constitution being involved, it obviously is not.” Id. at 65. “[W]ords may be used in a statute in a different sense from that in which they are used in the Constitution.” Id. The pertinent question, the Court said, was what “officer” meant not in the Constitution but in the criminal code. Id. The same is true here.
To conduct that inquiry the court focuses on the meaning of the words used in § 1985(1). Courts “normally interpret[] a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020). Starting with the word “office,” the Bass Plaintiffs have convincingly shown that Reconstruction-Era dictionaries defined that term to include legislators. One law dictionary defined “office” to mean “a right to exercise a public function or employment, and to take the fees and emoluments belonging to it,” and identified as an example of a “political office” “the office of the president of the United States, of the heads of departments, [or] of the members of the legislature.” JOHN BOUVIER, LAW DICTIONARY, ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA, AND OF THE SEVERAL STATES OF THE UNION 259 (5th ed. 1855) (emphasis added).19 That same dictionary defines “officer” to include “members of congress.” Id. at 260. Other dictionaries from that period are to the same effect. 2 ALEXANDER M. BURRILL, A LAW DICTIONARY AND GLOSSARY 257 (2d ed. 1867) (defining “office” to mean any “position or station in which a person is employed to perform certain duties,” including “[a] station or employment conferred by election of the people”); EDWARD HOPPER & J.J.S. WHARTON, LAW LEXICON, OR DICTIONARY OF JURISPRUDENCE: EXPLAINING THE TECHNICAL WORDS AND PHRASES EMPLOYED IN THE SEVERAL DEPARTMENTS OF ENGLISH LAW 537 (2d ed. 1860) (defining an “office” as “that function by virtue whereof a person has some employment in the affairs of another, whether judicial, ministerial, legislative, municipal, ecclesiastical” (emphasis added)).
The Reconstruction-Era Congress also would have understood the term “trust” to include members of Congress. In fact, the term had a meaning broader than the term “office.” It included “a confidence reposed in one person for the benefit of another.” BURRILL, supra, at 549. And, though the term “place of confidence” does not appear in the legal dictionaries of the day, its natural meaning must be as all-encompassing as “trust.” There can be little doubt that the plain text of § 1985(1) reaches members of Congress.20
President Trump pushes back on none of this definitional history.21 Instead, he cites Supreme Court and lower court decisions that use the term “federal officer” in describing the persons protected under § 1985(1). Thompson Trump Reply at 18. For instance, he cites Kush v. Rutledge, in which the Court, when describing the “classes of prohibited conspiracy” under § 1985, said that § 1985(1) made unlawful interference with “the performance of official duties by federal officers.” 460 U.S. 719, 724 (1983). Similarly, the Ninth Circuit in Canlis v. San Joaquin Sheriff’s Posse Comitatus said that “the clear import of [§ 1985(1)’s] language is that the statute’s protections extend exclusively to the benefit of federal officers.” 641 F.2d 711, 717 (9th Cir. 1981). Other courts have put forth the same formulation. See Miller v. Indiana Hosp., 562 F. Supp. 1259, 1281 (W.D. Pa. 1983) (observing that “§ 1985(1) . . . only protects federal officers”); Lobosco v. Falsetti, No. 09-1455 (JAP), 2010 WL 4366209, at *3 (D.N.J. Oct. 28, 2010) (citing Miller, 562 F. Supp. 1259); Diulus v. Churchill Valley Country Club, 601 F. Supp. 677, 681 (W.D. Pa. 1985) (“Section 1985(1), by its terms, proscribes only conspiracies which interfere with the performance of official duties by federal officers.”). From these cases President Trump asserts that “the phrase, ‘office, trust, or place of confidence under the United States’ in § 1985(1) is all merged to mean federal officer.” Thompson Trump Reply at 19.
But no case says any such thing. A reading of the above-cited cases makes evident that the courts were using “federal officer” as shorthand for persons protected under § 1985(1) and, in the lower-court decisions, to distinguish such persons from state and local officials or private citizens. Of course, the term “federal officer” never appears in § 1985(1), and none of the cited cases engages in a textual analysis of § 1985(1) at all. The definitional shorthand of “federal officer” is of no use in the present case. And, in the end, President Trump’s argument still requires equating “officer” with the meaning of the term as used in the Constitution. The court already has rejected that equivalency. The question here is whether the Reconstruction-Era Congress would have understood members of Congress to occupy an “office, trust, or place of confidence under the United States” or qualify as an “officer of the United States.” They certainly would have.
The court therefore finds that members of Congress plainly are within § 1985(1)’s zone of interests. Swalwell and the Bass Plaintiffs therefore have statutory standing to advance a claim.
2. Whether Plaintiffs Are “Covered Federal Officials” Under § 1985(1)
President Trump advances a variation of the above argument, which the foregoing discussion largely resolves. He contends that to successfully plead a § 1985(1) claim a plaintiff must allege conspiratorial action directed against a “covered federal official,” and because members of the House do not so qualify, Swalwell and the Bass Plaintiffs fail to state a claim. Thompson Trump Mot. at 26 n.8; Swalwell Trump Mot. at 29 n.12. For the same reasons the court found Swalwell and the Bass Plaintiffs to have statutory standing, the court rejects the instant contention: the plain words of § 1985(1), as they would have been understood during the Reconstruction Era, reach members of Congress. Therefore, a conspiracy to interfere with the discharge of their duties, by force, intimidation, or threat states a § 1985(1) claim.
But there is a bit more to say here. The Bass Plaintiffs advance an additional theory for stating a claim under § 1986 that does not depend on their occupying an office or position protected under § 1985(1). They contend that the alleged conspiracy also was designed to “prevent, by force, intimidation, or threat any person from accepting or holding any office, trust, or place of confidence under the United States.” 42 U.S.C. § 1985(1) (emphasis added). Those persons that the alleged conspiracy prevented from “accepting or holding” such office were President-elect Biden and Vice President–elect Harris. See Thompson Pls.’ Opp’n at 30–31 (explaining that the “broader aim of the conspiracy was to prevent President Biden and Vice President Harris from ‘accepting or holding’” their elected offices). The court agrees with this alternative theory. The Offices of the President and the Vice President unquestionably qualify as “any office, trust, or place of confidence under the United States.” Persons seeking to “accept[] or hold[]” those offices therefore are, in President Trump’s terms, “covered federal officials.” So, even if the Bass Plaintiffs are not “covered federal officials,” President-elect Biden and Vice President–elect Harris are, and a conspiracy directed at preventing them from accepting or holding office states a § 1985(1) claim. Under this alternative theory of conspiracy, the Bass Plaintiffs would be able to seek damages as “person[s]” injured by that alleged conspiracy. 42 U.S.C. § 1985(3).
3. Whether Members of Congress Were Discharging a “Duty” on January 6th The Oath Keepers advance an argument that no other Defendant does. They maintain that members of Congress were not discharging any “duty” on January 6th. Thompson Oath Keepers’ Mot. at 4–8. They contend that the Constitution requires the opening of electoral ballots “in the presence of . . . the House of Representatives,” U.S. Const. amend. XII, and therefore vests in individual members no duty but only “the opportunity to observe” the Electoral College vote. Id. at 7–8. In the Oath Keepers’ view, because § 1985(1) prohibits conspiracies to prevent federal officials from “discharging any duties,” the Bass Plaintiffs cannot state a claim.
This reading of the Constitution defies common sense. The House of Representatives can only act through its individual members. The Certification of the Electoral College vote, in particular the opening of Electoral ballots, cannot proceed “in the presence” of the House unless its individual members show up. Concededly, the Constitution does not expressly require a member to appear for the Certification. But the Constitution lacks such express appearance requirements as a general matter. Article I, which establishes the Congress and defines its powers, nowhere requires that an individual Senator or Representative appear for any particular proceeding. Article I, § 7, for example, which sets forth the process for passing legislation, does not require a Senator or Representative to cast a vote, but no one would reasonably say that the Constitution affords them only an “opportunity” to vote but no duty. The Oath Keepers’ argument is also too myopic. It ignores the Electoral Count Act, which does define roles for individual Senators and Representatives in the certification process, including making objections to ballots and, importantly, debating and voting on such objections. See supra pp. 29–30. Swalwell and the Bass Plaintiffs allege that they were at the Capitol on January 6th for those very purposes. Swalwell Compl. ¶ 10 (alleging that Swalwell “was at the Capitol performing his official duties as a member . . . to count the Electoral College votes and certify the winner of the 2020 Presidential election”); Thompson Compl. ¶¶ 12–21 (alleging that, for example, one member Plaintiff “was present in the Capitol on January 6, 2021, prepared to discharge her duties of tallying ballots of the Electoral College and certifying the results of the 2020 presidential election”).
The Oath Keepers’ reading also is inconsistent with the broad scope of § 1985(1). Under their reading, only expressly mandated acts qualify as a “duty,” and everyday discretionary acts— like voting on legislation or nominees, speaking to the press, or meeting with a constituent—would not. A member of Congress is not required to do any of those things. To read § 1985(1) to not reach such acts would eviscerate its purpose.
The court also notes that the Oath Keepers’ argument does nothing to defeat the Bass Plaintiffs’ alternative theory of liability under § 1985(1): that the charged conspiracy was intended to prevent the President-elect and the Vice President–elect from “accepting or holding” office. On this alternative theory, it does not matter whether members of the House had a “duty.”
Finally, the Oath Keepers make two additional arguments that the court quickly dismisses. First, they contend that the Bass Plaintiffs have pleaded themselves out of a claim because they allege that the Joint Session of Congress was in recess at the time rioters entered the Capitol building and, therefore, the “delay” in the proceedings occasioned on January 6th was due to “this internal reason,” not Defendants’ conduct. Thompson Oath Keepers’ Mot. at 9. That argument makes little sense for it does not matter what initially caused the Joint Session to recess or when it occurred: the alleged interference occurred during the hours that it took to remove the Oath Keepers and others from the Capitol building, when the Bass Plaintiffs otherwise would have been discharging their duty to certify election results. Second, the Oath Keepers argue that “Plaintiffs further allege that each member in his or her personal capacity were delayed, but this states no constitutional violation as a matter of law because the Constitutional provisions asserted in the complaint do not speak to or address delay of the proceeding.” Id. It is not at all clear what the Oath Keepers mean by this. The Bass Plaintiffs assert that the Oath Keepers’ conduct both prevented and delayed discharge of their duties; § 1985(1) requires no textual hook in the Constitution to define the interfered-with duty, although there is one here, or the ways in which someone might prevent such duty from being discharged.
4. Pleading of a Conspiracy
The court now reaches the most significant of Defendants’ sufficiency-of-pleading contentions: that all Plaintiffs have failed to plead a plausible conspiracy. Section 1985(1) is a conspiracy statute, and so pleading a plausible conspiracy is an essential element of all Plaintiffs’ § 1985(1) claims.
Before evaluating the sufficiency of the allegations, the court must address two arguments made by Trump and Giuliani about the pleading requirements. Invoking the standard under Rule 9(b), they have insisted that Plaintiffs must plead conspiracy with “particularity.” See, e.g., Thompson Trump Mot. at 25; Thompson Giuliani Mot. at 10. Not so. The Supreme Court in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 169 (1993), held that Rule 9(b)’s heightened pleading standard applies only to the two instances identified in the Rule: “the circumstances constituting fraud or mistake,” Fed. R. Civ. P. 9(b). Leatherman, 507 U.S. at 168 (rejecting heightened pleading standard for a claim under § 1983). Neither circumstance applies here.
Second, Trump and Giuliani contend that Swalwell and the Bass Plaintiffs must plead “actual malice” as part of their § 1985(1) claim because they are public officials. Thompson Trump Mot. at 26; Thompson Giuliani Mot. at 11. Again, not so. The element of “actual malice” derives from defamation claims against public figures. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). Courts have applied an “actual malice” requirement to claims under § 1985, but only when the conspiracy involved defamatory conduct. See Barr, 370 F.3d at 1202–03 (“Both the Supreme Court and this court have made clear that the constitutional protections available to defendants charged with defaming public officials may extend to other civil actions alleging reputational or emotional harm from the publication of protected speech.”). No such conduct is alleged here. Plus, a state-of-mind element that would require Plaintiffs to prove that a defendant made a statement with “knowledge that it was false or with reckless disregard of whether it was false or not” would make little sense in the context of a claim for conspiracy to interfere with discharge of a federal legislator’s duties through force, intimidation, or threat. New York Times Co., 376 U.S. at 279–80.
a. Principles of civil conspiracy
With these two issues out of the way, the court turns to describing the general principles of civil conspiracy. The term “conspiracy,” particularly in the minds of non-lawyers, likely conjures images of people meeting secretly to hatch a plan to violate the law. That is certainly one type of conspiracy. But the law does not require such a degree of deliberation, formality, or coordination. Conspiracies can be, and often are, established with far less direct proof.
“A civil conspiracy is defined as an agreement between two or more people to participate in an unlawful act or a lawful act in an unlawful manner.” Hobson v. Wilson, 737 F.2d 1, 51 (D.C. Cir. 1984). The agreement can be either express or tacit. Halberstam v. Welch, 705 F.2d 472, 476 (D.C. Cir. 1983). So, a plaintiff “need not show that the members entered into any express or formal agreement, or that they directly, by words spoken or in writing, stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be accomplished.” 3B FED. JURY PRAC. & INSTR. § 167:30, Westlaw (database updated Jan. 2022) (quoting federal standard jury instruction for claims brought under § 1985(3) (emphasis added)). It is enough “that members of the conspiracy in some way or manner, or through some contrivance, positively or tacitly[,] came to a mutual understanding to try to accomplish a common and unlawful plan.” Id. All coconspirators must share in the general conspiratorial objective, though they need not know all the details of the plan or even possess the same motives. Hobson, 737 F.2d at 51. They need not know the identities of other coconspirators. Id. In short, a civil conspiracy requires a showing “that there was a single plan, the essential nature and general scope of which were known to each person who is to be held responsible for its consequences.” Id. at 51–52 (cleaned up). And, to be actionable, there must be an overt act in furtherance of the conspiracy that results in injury. Id. at 52.
At this stage of the case—on motions to dismiss—Plaintiffs’ burden to establish a conspiracy is lighter than it would be following discovery. A plaintiff at this stage must draft a complaint “with enough factual matter (taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. Such factual matter must establish “plausible grounds to infer an agreement” but not “a probability requirement at the pleading stage.” Id. The standard for pleadings “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” Id. “[A]n allegation of parallel conduct and a bare assertion of conspiracy will not suffice.” Id.
b. The alleged conspiracy
Before assessing the sufficiency of Plaintiffs’ pleadings, it is important to bear in mind what the alleged unlawful conspiracy is and what it is not. It is not that Defendants conspired to sow doubt and mistrust about the legitimacy of the electoral process and results of the 2020 presidential election. Nor is it that Defendants worked together to influence, pressure, or coerce local officials, members of Congress, and the Vice President to overturn a lawful election result. Though many Americans might view such conduct to be undemocratic or far worse, neither example is an actionable conspiracy under § 1985(1). The conspiracy alleged is that Defendants agreed “to prevent, by force, intimidation, or threat,” (1) Swalwell and the Bass Plaintiffs from discharging their duties in certifying the results of the presidential election and (2) the President-elect and Vice President–elect from “accepting or holding” their offices.22 It is this conspiracy that Plaintiffs must plausibly establish through well-pleaded facts. The court begins with a detailed summary of those facts and then, assuming those facts to be true, assesses their sufficiency as to each coconspirator.
i. Summary of allegations23
According to Plaintiffs, in the months leading up to January 6th, President Trump and his allies created the conditions that would enable the violence that happened that day. The President’s role during this period was multifaceted. It included regularly issuing false tweets insisting, among other things, that the elections in those states and localities where he had not prevailed were rampant with voter fraud; that he actually had won in those places when in truth he had lost; that “big city . . . crooks” had plotted to “steal votes”; that if certain Republican governors had done more he would have won; and that a voting-machine vendor had helped rig elections. President Trump also directly contacted state and local election officials in places where he had lost to convince them to take steps to reverse their election results. And, he invited supporters to come to Washington, D.C., for a rally on January 6th, the day of the Certification of the Electoral College vote. President Trump directly participated in rally planning, and his campaign committee provided substantial funding and organizational assistance. Giuliani and Trump Jr. aided the President in the foregoing efforts. They coordinated with him, spread similar disinformation, contacted state and local election officials, and agreed to speak at the January 6 Rally.
According to the Complaints, President Trump convinced his supporters that the election had been stolen from him and, importantly, them. These supporters included organized groups, such as the Proud Boys and the Oath Keepers. Some supporters, responding to President Trump’s tweets, engaged in acts of intimidation toward state and local election officials. For example, after President Trump said that a Georgia election official was an “enemy of the people,” that official received threats of violence and assassinations. When another Georgia official asked President Trump to condemn these actions, urging him to “Stop inspiring people to commit acts of violence,” and warned that “Someone is going to get shot, someone is going to get killed,” the President remained silent. Another state election official had armed protesters descend on her home.
Some supporters organized and attended rallies, including two in Washington, D.C., on November 14, 2020, and December 12, 2020. The Proud Boys and the Oath Keepers attended these District of Columbia–based events. At the December 12 rally, an Oath Keepers leader said that President Trump “needs to know from you that you are with him, [and] that if he does not do it now while he is Commander in Chief, we’re going to have to do it ourselves later, in a much more desperate, much more bloody war.” Violence also broke out in connection with these rallies. Police clashed with some of the President’s supporters. Dozens were arrested, persons were stabbed, police were injured, and property destroyed.
President Trump first promoted the January 6 Rally on December 19, 2020, announcing on Twitter: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” Some of the President’s supporters interpreted the President’s tweet as a call to violence. Some followers on the message board TheDonald.win openly talked of bringing weapons to Washington, D.C., and engaging in acts of violence. Some on Twitter and Facebook posted about “Operation Occupy the Capitol” and used hashtags such as #OccupyCapitols. The Proud Boys and the Oath Keepers, for their part, began active planning for January 6th, including reaching an agreement to work together. Oath Keepers leaders announced on Facebook “an alliance” and “a plan with the Proud Boys.” Tarrio posted on the social media site Parler that the Proud Boys would “turn out in record numbers on Jan 6th” but would be “incognito” and “spread across downtown DC in smaller teams.” The Proud Boys and the Oath Keepers prepared for the January 6 Rally by obtaining tactical equipment, communications equipment, and bear mace.
On the eve and the morning of the January 6 Rally, the President tweeted yet again that the election had been rife with fraud and insisted that the Vice President could send ballots back to the states for recertification. He also tweeted that Washington, D.C., “is being inundated by people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore!”
Supporters, including the Proud Boys and Oath Keepers, arrived at the Ellipse for the January 6 Rally before 9:00 a.m. They heard from various speakers, including Giuliani and Trump Jr. (more on their statements below), both of whom repeated false claims about the election being stolen and asserted that the Vice President could block the Certification. President Trump spoke last.24 He gave a 75-minute speech based on the false premise that he had won the election and that it had been stolen from him and those gathered. At the start, he said that “Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with, we will ‘stop the steal.’” Early in the speech he alluded to rally-goers marching to the Capitol building. The President told the assembled crowd that “Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is up to Congress to confront this egregious assault on our democracy.” He continued:
And after this, we’re going to walk down—and I’ll be there with you—we’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. And we’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness.
You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today we will see whether Republicans stand strong for integrity of our elections, but whether or not they stand strong for our country, our country.
The President’s call for a march to the Capitol was not, however, authorized. It was something that he and his campaign had devised. The Rally’s permit said: “This permit does not authorize a march from the Ellipse.”
As the President’s speech continued, the crowd grew increasingly animated. The President told them that if the Vice President did not send ballots back for recertification, “you will have a President of the United States for four years . . . who was voted on by a bunch of stupid people who lost all of these states. You will have an illegitimate president. That is what you will have, and we can’t let that happen.” At some point after, the crowd began shouting “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol Right Now.” They also began to chant “Fight Like Hell” and “Fight for Trump.”25 At the conclusion of his speech, the President told the rally-goers: “I said, ‘Something’s wrong here. Something’s really wrong. Can’t have happened.’ And we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after, he told the crowd:
So, we’re going to walk down Pennsylvania Avenue . . . and we’re going to the Capitol and we’re going to try and give—the Democrats are hopeless. They’re never voting for anything. But we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness they need to take back our country. So, let’s walk down Pennsylvania Avenue.
Meanwhile, before the President’s speech had concluded, the Proud Boys had already breached the outer perimeter of the Capitol grounds. One Proud Boys member shouted, “Let’s take the fucking Capitol!,” to which one responded, “Don’t yell it, do it.” They then broke into smaller groups and began breaking through exterior barricades. By the time the crowd arrived from the Ellipse, those barricades had been compromised. The crowd eventually overwhelmed Capitol police and was able to enter the building. Some rioters told Capitol police officers, “[W]e are listening to Trump—your boss” and “We were invited here by the President of the United States.” Some entered the House chamber, and others, the Speaker of the House’s office. The Oath Keepers entered the building in a military-style formation, dressed in paramilitary equipment, helmets, and reinforced vests. One message exchanged among them said: “We have a good group. We have about 30–40 of us. We are sticking together and sticking to the plan.” As a result of rioters entering and remaining in the Capitol, Congress and the Vice President were prevented from proceeding with the Certification of the Electoral College vote as planned.
President Trump had not, as promised, joined the crowd at the Capitol. Instead, he was already back at the White House by the time rioters entered the Capitol. He began watching live televised reports of the siege. He first tweeted a video of his Rally Speech. Then, about fifteen minutes after rioters had entered the Capitol building, President Trump tweeted:
Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify correct set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands truth!
Rioters at the Capitol building repeated the tweet on megaphones. Minutes later, the President called Senator Mike Lee looking for Senator Tommy Tuberville; Senator Lee informed the President that the Vice President was being evacuated by the Secret Service and that he had to go. Later, when House Leader Kevin McCarthy spoke to the President by phone and urged him to call off the rioters, the President responded: “Well, Kevin, I guess these people are more upset about the election than you are.” About a half hour after rioters had entered the Capitol building, the President tweeted: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” Approximately 90 minutes later, at 4:17 p.m., the President tweeted a video in which he again repeated that the election had been stolen but told his supporters to go home. He said to them, “I know your pain. I know you’re hurt,” and added, “We love you. You’re very special.” At 5:40 p.m., law enforcement finally cleared the Capitol building. At 6:00 p.m., the President sent another tweet:
These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!
Congress would resume the Certification later that night and would complete it at 3:41 a.m. the next day.
ii. President Trump
Viewing the foregoing well-pleaded facts in the light most favorable to Plaintiffs, and drawing all reasonable inferences in their favor, see Hurd v. District of Columbia, 864 F.3d 671, 675 (D.C. Cir. 2017), the court concludes that the Complaints establish a plausible § 1985(1) conspiracy involving President Trump. That civil conspiracy included the Proud Boys, the Oath Keepers, Tarrio, and others who entered the Capitol on January 6th with the intent to disrupt the Certification of the Electoral College vote through force, intimidation, or threats.
Recall, a civil conspiracy need not involve an express agreement; so, the fact that President Trump is not alleged to have ever met, let alone sat down with, a Proud Boy or an Oath Keeper to hatch a plan is not dispositive. A tacit agreement—one that is “implied or indicated . . . but not actually expressed”—is enough. Tacit, MERRIAM-WEBSTER’S DICTIONARY, https://www .merriam-webster.com/dictionary/tacit (last visited Feb. 8, 2022). The key is that the conspirators share the same general conspiratorial objective, or a single plan the essential nature and general scope of which is known to all conspirators. See Hobson, 737 F.2d at 51–52. Multiple factors make President Trump’s involvement in the alleged § 1985(1) conspiracy plausible.
First, a court “must initially look to see if the alleged joint tortfeasors are pursuing the same goal—although performing different functions—and are in contact with one another.” Halberstam, 705 F.2d at 481. Both elements are present here. The President, the Proud Boys, the Oath Keepers, and others “pursu[ed] the same goal”: to disrupt Congress from completing the Electoral College certification on January 6th. That President Trump held this goal is, at least, plausible based on his words and actions. He repeatedly tweeted false claims of election fraud and corruption, contacted state and local officials to overturn election results, and urged the Vice President to send Electoral ballots back for recertification. The President communicated directly with his supporters, inviting them to Washington, D.C., to a rally on January 6th, the day of the Certification, telling them it would be “wild.” He directly participated in the rally’s planning, and his campaign funded the rally with millions of dollars. At the rally itself, the President gave a rousing speech in which he repeated the false narrative of a stolen election. The crowd responded by chanting and screaming, “Storm the Capitol,” “Invade the Capitol,” “Take the Capitol right now,” and “Fight for Trump.” Still, the President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.” From these alleged facts, it is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes. The Oath Keepers, the Proud Boys, and others who forced their way into the Capitol building plainly shared in that unlawful goal.
Second, it is also plausible that the President was aware of the essential nature and general scope of the conspiracy. See Hobson, 737 F.2d at 51–52. He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts. The President expressed knowledge of the Proud Boys during a presidential debate, in which he said, “Proud Boys, stand back and stand by.” He also likely knew of the Oath Keepers based on the group’s public profile at pro-Trump rallies in Washington, D.C. It is reasonable to infer that the President knew that these were militia groups and that they were prepared to partake in violence for him. The same is true of other supporters. The President and his advisors allegedly “actively monitored” websites where supporters made violent posts, and such posts were discussed on Fox News, a media outlet regularly viewed by the President. He also would have known about violent threats made against state election officials, which he had refused to condemn. The President thus plausibly would have known that a call for violence would be carried out by militia groups and other supporters.
Third, Plaintiffs’ allegations show a call-and-response quality to the President’s communications, of which the President would have been aware. The Complaints contain numerous examples of the President’s communications being understood by supporters as direct messages to them and, in the case of the January 6 Rally, as a call to action. When he told the Proud Boys to “stand back, and stand by,” Tarrio tweeted in response, “Standing by sir.” After publicly criticizing state election officials, some of those election officials became the object of threats of violence. When the President tweeted an invitation to the January 6 Rally, pro-Trump message boards and social media lit up with some supporters expressing a willingness to act violently, if needed. Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.” Even the President’s counsel conceded that an invitation to commit a tort and the acceptance to do so would establish a civil conspiracy. Hr’g Tr. at 67–68; see also id. at 56–57 (same concession by Giuliani’s counsel); id. at 82 (same concession by the Oath Keepers’ counsel). A plausible causal connection between the President’s words and the response of some supporters is therefore well pleaded. Cf. Hobson, 737 F.2d at 54 (observing that “the flow of information back and forth, coupled with evidence of efforts to impede plaintiffs’ rights . . . conceivably could have sufficed to permit a jury to infer that an agreement existed among certain persons . . . to disrupt plaintiffs’ activities”).
Fourth, the President’s January 6 Rally Speech can reasonably be viewed as a call for collective action. The President’s regular use of the word “we” is notable. To name just a few examples: “We will not take it anymore”; “We will ‘stop the steal’”; “We will never give up”; “We will never concede”; “We will not take it anymore”; “All Mike Pence has to do is send it back to the states to recertify, and we become president”; “[W]e’re going to have to fight much harder”; “We can’t let that happen”; “We’re going to walk down . . .”; “We fight like hell”; “We’re going to walk down Pennsylvania Avenue.” “We” used repeatedly is this context implies that the President and rally-goers would be acting together towards a common goal. That is the essence of a civil conspiracy.
And, finally, a tacit agreement involving the President is made all the more plausible by his response to the violence that erupted at the Capitol building.26 Approximately twelve minutes after rioters entered the Capitol building, the President sent a tweet criticizing the Vice President for not “hav[ing] the courage to do what should have been done to protect our Country.” Rioters repeated that criticism at the Capitol, some of whom saw it as encouragement to further violence. It is reasonable to infer that the President would have understood the impact of his tweet, since he had told rally-goers earlier that, in effect, the Vice President was the last line of defense against a stolen election outcome. The President also took advantage of the crisis to call Senator Tuberville; it is reasonable to think he did so to urge delay of the Certification. And then, around 6:00 p.m., after law enforcement had cleared the building, the President issued the following tweet: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” A reasonable observer could read that tweet as ratifying the violence and other illegal acts that took place at the Capitol only hours earlier. See Hobson, 737 F.2d at 53 (agreeing that “evidence of a pattern of mutually supportive activity over a period of time provides a reasonable basis for inferring that parties are engaged in a common pursuit” (cleaned up)).
The President argues that, at most, Plaintiffs have pleaded that the President “made political statements . . . at a rally meant to persuade political officials.” Thompson Trump Mot. at 27. But that contention misses the forest for the trees. It ignores the larger context of the Rally Speech. For months, the President led his supporters to believe the election was stolen. When some of his supporters threatened state election officials, he refused to condemn them. Rallies in Washington, D.C., in November and December 2020 had turned violent, yet he invited his supporters to Washington, D.C., on the day of the Certification. They came by the thousands. And, following a 75-minute speech in which he blamed corrupt and weak politicians for the election loss, he called on them to march on the very place where Certification was taking place. The President’s narrow characterization of his conduct accounts for none of this.
The President also contends that a conspiracy involving him not only is “far-fetched, but it is also in direct opposition to many of the statements made by Mr. Trump at the very rally.” Id. at 28. The only portion of the Speech he cites to support that proposition is that, early on, he said that rally-goers soon would be “marching over to the Capitol building to peacefully and patriotically make your voices heard.” See id. The President certainly uttered those words. But he also uttered others, which he ignores. Immediately before directing them to the Capitol, he told rally-goers that they would need to “fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” When those supporters did “fight like hell,” just as he had told them to, the President did not demand they act “peacefully and patriotically.” He instead tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country.” Later, he referred to those who had attacked the Capitol as “great patriots,” and told them to, “Remember this day forever!” These other statements by the President stand in stark contrast to his passing observation that rally-goers would soon be “peacefully and patriotically” marching to the Capitol. Those three words do not defeat the plausibility of Plaintiffs’ § 1985(1) claim at this stage.
The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.
The President also suggests that, at most, Plaintiffs have pleaded independent, parallel conduct that does not make out a plausible conspiracy under Twombly. Thompson Trump Reply at 21–22. But that argument ignores the multiple ways in which the President interacted with his supporters, including organized groups. The Complaints detail how the President’s tweets led to threats of violence against state election officials; how his tweet inviting supporters to Washington, D.C., on January 6th was understood by some to be a call to action; and how he called on thousands to participate in an unauthorized march on the Capitol building that ended in acts of violence. That is a pattern of mutually supportive activity that supports a plausible conspiracy. Hobson, 737 F.2d at 53. Such mutually supportive activity distinguishes this case from Twombly, in which the Court held that the complaint failed to allege a conspiracy because market factors, not concerted action, were a more plausible explanation for the alleged conduct. See Twombly, 550 U.S. at 566–69.
Finally, the President argues that Plaintiffs cannot construct a conspiracy based on “Mr. Trump’s political activity,” which is protected speech. Thompson Trump. Mot. at 28. The court addresses the President’s First Amendment defense below.
iii. Giuliani
The court reaches a different conclusion as to Giuliani. There is little doubt that Plaintiffs have adequately pleaded that Giuliani was involved in a conspiracy to “engage[] in a months-long misinformation campaign to convince Trump’s supporters that the election had been illegally stolen.” Thompson Pls.’ Opp’n at 42. But, as the court stated earlier, such a conspiracy does not violate § 1985(1). What Plaintiffs must plausibly establish is that Giuliani conspired to prevent Congress from discharging its duties on January 6th by force, intimidation, or threat. There, they fall short.
In addition to his pre–January 6th actions—which alone do not establish Giuliani as a § 1985(1) conspirator—Plaintiffs point to two of Giuliani’s acts that occurred on January 6th: (1) his rally speech, in which he said, “So, let’s have trial by combat” and “We’re going to fight to the very end to make sure that doesn’t happen,” and (2) a phone call that he made to members of Congress, urging them to delay the Certification. Thompson Pls.’ Opp’n at 42–43. These allegations, individually and taken together, do not “nudge[]” Plaintiffs’ § 1985(1) claim against Giuliani “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
As to his rally remarks, the court believes Giuliani’s words are not enough to make him part of a § 1985(1) conspiracy. Critically, Giuliani uttered no words that resembled a call to action. “Trial by combat” was not accompanied by a direction to do anything. And, given the speaker, those words were not likely to move the crowd to act. There is no allegation that anyone took Giuliani’s words as permission to enter the Capitol. And there are no allegations that Giuliani at any time before January 6th uttered words advocating or inspiring violence. Indeed, as discussed further below, the court holds that Giuliani’s rally remarks are constitutionally protected speech. Nor is Giuliani alleged to have been involved in rally planning or known that the President would direct the crowd to march to the Capitol. And he did not express solidarity with the rally-goers after some violently assaulted police and forced their way into the Capitol. Giuliani’s words at the rally are not sufficiently additive to make him a § 1985(1) coconspirator.
Neither are his phone calls to lawmakers on January 6th after the Capitol was breached. There is some conflict among Plaintiffs on this allegation. The Bass Plaintiffs allege that such calls were made “while the insurrection was ongoing.” Thompson Compl. ¶ 138. The Blassingame Plaintiffs, on the other hand, say that two such calls occurred at 7:00 p.m., after law enforcement had cleared the Capitol. Blassingame Compl. ¶ 128. Whatever the timing of those calls, they at most establish Giuliani as an opportunist, not someone who shared in the same general conspiratorial objective as others before the violence at the Capitol occurred. Though Giuliani unquestionably was a central figure in the President’s efforts to sow doubt and mistrust in the election’s outcome, the court cannot say, based on the facts alleged, that he plausibly shared the common conspiratorial goal of violently disrupting the Certification.
iv. Trump Jr.
The court reaches the same conclusion as to Trump Jr. The allegations against him are even thinner than those against Giuliani. Before January 6th, he sent false and misleading tweets about the election and publicly criticized officials who did not support his father. He also spoke at the rally, during which he repeated false claims about election fraud and theft. He also warned Republicans who failed to back the President, “we’re coming for you, and we’re gonna have a good time doing it.” As discussed below, the court believes these words to be protected speech. That is all Plaintiffs have attributed to Trump Jr.27 He is not alleged to have participated in rally planning, known that the President would direct a march to the Capitol, or expressed support for the rioters and their actions. The allegations against Trump Jr. are insufficient to make him a coconspirator in a plan to disrupt Congress from performing its duties.
v. The Oath Keepers
The Oath Keepers also challenge the sufficiency of the conspiracy allegations against them. But that argument goes nowhere. At a minimum, the alleged facts establish a § 1985(1) conspiracy between the Oath Keepers and the Proud Boys. After the President’s announcement of the January 6 Rally, a leader of the group posted a Facebook message that he had “organized an alliance between Oath Keepers . . . and Proud Boys. We have decided to work together and shut this shit down.” Days later, another leader posted on Facebook that the Oath Keepers had “orchestrated a plan with the Proud Boys.” Those statements, if true, would be direct evidence of a civil conspiracy. The Complaints also detail each group’s preparations for January 6th, and they allege that members from each group forcibly entered the Capitol building intent on disrupting the Certification. These well-pleaded allegations easily establish a plausible § 1985(1) conspiracy between the two groups.
The Oath Keepers make two primary contentions. First, they maintain that the Thompson complaint lacks sufficient details, such as names of the leaders who posted to Facebook, to establish a conspiracy. Thompson Oath Keepers’ Mot. at 14. But Rule 8’s notice-pleading rules apply here, and the Oath Keepers have not cited any case that requires the specificity they demand to survive a motion to dismiss. Second, they complain that they are being held responsible for the acts of the group’s members. See id. at 15. Plaintiffs, however, have pleaded sufficient facts to establish respondeat superior liability at this stage.
vi. Tarrio
Tarrio’s role in the conspiracy is established through well-pleaded allegations. It is reasonable to infer that, as the leader of the Proud Boys, he would have participated in forming the announced “alliance” and “orchestrated plan” with the Oath Keepers. Thompson Compl. ¶ 63. He also said that the Proud Boys would be there in “record numbers on Jan 6th,” would be “incognito,” and would “spread across downtown DC in smaller teams.” Id. ¶ 64. It is also reasonable to infer that he would have been involved in the Proud Boys’ collection of tactical vests, military-style communication equipment, and bear mace. Id. ¶ 65. These allegations are sufficient to plausibly establish Tarrio as a conspirator.
